440 TILLY v. TILLY.

suit by one party, claiming adversely to another, then it is shewn,
by this petitioner himself, to have abated by the death of one of
the materially interested parties; and therefore, it cannot, in any
way, be further proceeded in, until it has been regularly revived.
But this is a special form of proceeding, sanctioned by the legisla-
ture, whereby a sale of the real estate of may be ordered,
on its being shewn to the Chancellor, to be for their interest and
advantage that it should be sold, and the proceeds of the sale
invested in some public stock, or other permanent fund for their
benefit. It is a form of judicial proceeding, which may be origi-
nated and prosecuted to a conclusion by a next friend, and a
guardian of an infant, without the infant himself ever having had
the least knowledge of it whatever. And therefore, it cannot be
treated as an adversary suit, which abates by the death of an infant
who was a party to the proceeding; since his heir, or representa-
tive comes in after his death, not to prosecute or defend an unset-
tled right, but merely to claim that, in a new form, the right to
which had never been drawn in question; and was not then, in
any way, to be put in issue. The representative is let in to make
his claim as from the deceased infant's guardian, considering this
court in such a proceeding for the sale of the infant's estate, as
having officiated as his guardian, by having thus undertaken the
conversion and management of his estate. The interest of these
infants sold under the decree, was of a nature that could not, on
their death, descend to their heirs as real estate; and therefore,
this administrator of Horatio Tilly, deceased, who was one of the
original parties to the proceeding, may now well be allowed thus
to come in, to obtain so much of his intestate's interest as remained
unsatisfied, at the time of his death, by the trustee Brewer.

Ordered, that the said trustee forthwith make a full and particu-
lar report of his proceedings on oath; and bring into court all the
money now in his hands, as prayed, or show good cause to the
contrary, on the third day of December next; provided, that a
copy of this order, together with a copy of the said petition, be
served on him on or before the twenty-first instant.

On the 3d of December, 1829, the trustee Brewer, made report
on oath, in which he says, that he received a small part of the
proceeds of said sale in cash; that the greater part was paid by
said Joseph Evans, to the said Lucretia, Edward, Elizabeth, Mar-
garet and Sarah Tilly, or for their benefit, with the trustee's con-