DEAKINS' CASE. 403

24th November, 1824.—BLAND, Chancellor.—The arguments
of counsel having been heard, the proceedings were read and
considered.

This case has been brought before this court by two separate
and original proceedings, which have now become intimately and
necessarily blended. The ex parte petition of Edward Thomas
brought in the first part of it; and the bill of John Hoye intro-
duced the second part. These two distinct proceedings, moving
separately, and apparently having entirely different objects, were
shewn to have an intimate connection with each other by the peti-
tion of Hoye; and were linked together by the order of the 2d of
July, made on that petition. Looking then into all the proceed-
ings and exhibits, the case as it now stands before the court is this:

William Deakins being seized of certain real estate, made his
will disposing of the whole, and died. He gave a part of his
real estate to his wife Jane; and the rest he devised to his brother
Francis Deakins, who he appointed his executor, in trust, in the
first place, to be sold for the payment of his debts. In May, 1804,
Edward Thomas obtained a judgment against Francis, the execu-
tor of William, for a large sum of money, with interest and costs,
Francis died without having sold the real estate of his testator for
the purpose of executing the trusts reposed in him; and adminis-
tration de bonis non was granted to John Hoye. After which, by
a written agreement between John Hoye and Edward Thomas, it
was stipulated, that in consideration of certain lands in Virginia
being conveyed to Edward, he should assign over all his right to
the judgment he had obtained against Francis, to John Hoye.
After which Edward Thomas filed his petition here; upon, and
subsequent to which the before mentioned proceedings were had.

Had Francis, the testamentary trustee, attempted to sell the real
estate devised to Jane, he might have been restrained by an injunc-
tion; or if he had made a sale, it would have been deemed void.
And if he had attempted to sell that real estate which was actually
devised to him to be sold for the payment of the testator's debts,
under the pretence of paying debts, when in fact and truth there
were no debts really due, those interested in the estate might have
had their interests protected by an injunction. I conceive Here
could have been no doubt of the propriety of the exercise of such
an authority in restraint of the testamentary trustee Francis Dea-
kins, were he living.

Edward Thomas expressly founds his petition upon the act of