HELMS v. FRANCISCUS. 589

and if he failed to do so, to assume the truth of the plaintiffs' alle-
gations, and decree accordingly. But after the day limited by the
order of publication to appear, had elapsed, and before any decree
had been passed, Lewis Helms came in by petition, and prayed to
be allowed to put in the answer which he then tendered, in defence
of his rights.

It was obvious that the matter in controversy, as regarded the
executors; and as between Helms and his wife, could not be pro-
perly and finally disposed of, until it was determined whether he
was to be taken as an active party or not. His pretensions
covered the whole matter in dispute. He claimed to have the
account taken with him: and to have the legacy paid entirely to
him. And consequently, to have allowed the case to proceed to
an account between the plaintiffs and the executors alone, with a
reservation of all the husband's rights, as they might be introduced
at a subsequent stage of the case, would have been, in effect, to
pass a decree with an understanding, that a party who stood by,
might, if he chose, have the whole matter re-examined and re-
adjudicated. This, I refused to allow; and after some delay, the
plaintiffs consented that the defendant Lewis Helms, should come
in upon his preferred answer. Although I may come to the con-
clusion that it would be unjust to direct any part of this resi-
duary legacy to be paid to him, yet he should be permitted to
assist in taking the account; and have the privilege of excepting
to it when reported by the auditor, to prevent his rights from being
in any manner improperly involved, or finally compromitted to his
prejudice.

This is a case of a very singular complexity. The principal
object of the suit is to recover a residuary legacy given by the late
Carsten Newhaus, to the plaintiff Anna, and to ascertain how much
of the testator's estate should be embraced by that bequest.
Another object is to have the whole of the legacy thus given,
settled upon the plaintiff Anna, to the exclusion of her husband,
the defendant Lewis Helms; except so much of it as has been
pledged or assigned to the plaintiffs Sumwalt and McFarren.
But if the court should determine that the defendant Lewis Helms,
is entitled to any portion of it, then, to meet that event, Mordecai
L. Flagler has introduced himself into this case, by his petition;
and prayed to have his claim considered and satisfied, as the cre-
ditor and assignee of the defendant Lewis Helms.

There can be no doubt, from the pleadings and proofs, that the