HAMMOND v. HAMMOND. 319

or none who are citizens or residents of this state, then, following
the provisions of the act of assembly, as to suits at common

the defendant Mary afterwards married the defendant Smith; who have hitherto
refused to sell the said lands, unless thay be compelled and justified in doing so by a
decree of this court. Whereupon it was prayed, that the said lands, or so much
thereof might be sold, as would be sufficient to pay the deceased's debts and the costs
and charges4>f the person empowered to sell the same.

On motion of the defendant Hoggins, by his solicitor, it was Ordered, that the said
name of Peter Hoggins be struck out of the said bill of complaint.

The defendants Smith and wife, by their answer, admitted that Gunder Erickson,
deceased, did make his will, as in the bill mentioned, and that on the defendant
Mary's renouncing the executorship, administration was granted to Peter Hoggins;
that the said Erickson, by his will, devised to the defendant Mary, in fee simple,
half of the tract of land on which he lived, in lieu of her dower, which she ac-
cepted as such; that after the marriage of these defendants, the plaintiff Cummings,
and Robert Tyler, bond creditors of the deceased, sued these defendants, as devi-
sees, and recovered judgments against them, by virtue whereof they paid to the said
Gumming 3,357 lbs. tobacco, and to the said Tyler 9,602 lbs. tobacco; that the defen-
dant Mary, was ready to do what the court should direct for the sale of the said
land, and had not refused to do what was right therein, consistent with her security
and safety as trustee; but these defendants insisted that the bond debts, due from the
deceased, which they had paid, together with the costs, should be allowed to them
out of what should be raised by a sale of the said lands; that they were strangers to,
and ignorant of, the claims of the plaintiffs against the deceased; and therefore no
more should be allowed to those creditors than what might appear to be justly due ;
and these defendants hoped that, as the defendant Mary was only a trustee involun-
tary, the costs and charges expended by them in this suit might be paid to them, in
the first place, out of the moneys arising from the sale of the lands devised to be
sold.

May, 1739.—It was Ordered, in presence of the counsel on both sides, that there
should be a hearing of the said cause the next court on bill and answer.

30th October, 1739.—OGLE, Chancellor.—This case coming on to be heard in
presence of counsel on both sides, (he complainant's bill and the defendant's answer
thereto being read, appeared to be as the same, are hereinbefore recited and set forth

Whereupon it is Decreed, that the lands and premises mentioned in the said bill
to be devised for payment of the debts of the said Gunder Erickson be accordingly
sold by the master to the best bidder, and that the master for that purpose give pub-
lic notice, by causing printed advertisements to be set up in the most public places,
of such intended sale; and also, that the said master cause public notice, in like
manner to be given, that all the creditors of the said Gunder Erickson should come
in and prove before the said master their respective debts, before the 28th day of
February, or that, in default thereof, such creditors will be excluded from any share
or proportion of the produce arising by the sale of the said lands and premises, and
this court doth further Decree, that the money or tobacco arising by such sale shall be
applied by the master, in the first place, for the payment of the complainants' and de-
fendants' costs of this suit; and all other necessary charges and expenses in the sale
of the said lands and premises, and performance of this decree; and in the next
place, to the payment of all debts whatsoever due from the said Gunder Erickson,
in proportion, which shall be proved before the said master, before the 28th day of
February; and then, if any money or tobacco shall remain, after payment of the said
costs, charges, and expenses and debts, the same shall be applied for the payment of