HAMMONDv. HAMMOND. 373

legislative enactments, add the interest which had accrued upon
the judgment below to its aggregate amount, and direct the whole

others, he died in the month of June, 1790, intestate and without issue, leaving the
defendant, an infant, to whom his real estate, consisting of a moiety of two adjoin-
ing parcels of land, containing about —— acres, descended; lands had been
devised to him and this defendant, by their father, in the words following:

* I give and bequeath all the lands that I am possessed of to be equally divided
between my two sons, Alexander and John Alexander, to them and their heirs for
ever; but, if in case either of my said sons should die without any heir lawfully
begotten of his body, or before he arrives at the age of twenty-one years, that then
in such case his part to be the sole right and property of my surviving son, his heirs
and assigns, for ever. My will and desire is, that my son Alexander do, out of his
part of my estate, expend so much money as will be sufficient to give my son John
Alexander a good education. Whereas I have given all my land to my two sons,
my will is, that the division line shall begin at Rake's Land, and so running towards
Fishing Creek; my son Alexander to have the first choice of the land. The resi-
due and remainder of my personal estate I give to be equally divided between my
two sons, their heirs and assigns, for ever. I constitute and appoint my loving son
Alexander Frazier whole and sole executor of this my last will and testament.

The bill further states, that Alexander Frazier was above the age of twenty-one
at the time of his death; and, in virtue of the election given to him by this devise, did
in his life-time, elect to have the southermost moiety of the land so deviaed, which
he improved by erecting houses thereon, and repairing those already built, at con-
siderable expense; that the personal estate of the said Alexander Frazier amounted
to no more than .£850 13s. 4d. as appeared by the inventory returned by the defen-
dant John A. Frazier, who took out letters of administration on the same, and was
therefore insufficient for the payment of his debts. Whereupon it was prayed, that
John A. Frazier, being an infant, a guardian might be appointed for him to make an-
swer; and that the real estate of Alexander Frazier, deceased, or so much thereof as
might be necessary, might be sold for the payment of his debts.

The defendant John A. Frazier, on the 7th of May, 1792, filed his answer by his
guardian ad litem, in which he admitted the death of his brother Alexander, as
stated, and that the lands had been devised to him by their father, as set forth; but
the interest which they thereby took, he submitted for decision; that by the will
of their father, his brother was required to maintain and educate him; that his
brother, after the death of their father, took possession of all his real and personal
estate, and received the whole of the rents and profits thereof, which he applied to
his own use; and maintained, but did not educate this defendant. Wherefore this
defendant claims to be considered as a creditor of his brother, with a preference over
others to the value of one-half of the rents and profits of their estate, and also to
the value of the expense of the education which he ought to have obtained; that
his brother erected no new houses on the land, but repaired some, as stated; that he
made, in his life-time, no election to take the southermost half of the land, as stated;
that his personal estate was wholly insufficient to pay his debts; that his brother
became indebted by bond, as stated; but that, as to the open accounts, they were
very confused; and he denied that his brother owed to the plaintiff so much as he
demanded, and put him to establish his claim, &c.

A commission was issued, under which, testimony was taken and returned on the
4th of May, 1795. After which, the parties, the defendant having attained his full
age, by their solicitors, on the 30th of November 1795, entered into and filed an
agreement in the following words:
48 v.2