The Chancellor.
The respondents in this case misapprehended the effect of the 118th rule of this court if they [85]*85supposed the final decree of the surrogate could be modified in their favor, where it was not found to be erroneous as against the appellant, without bringing a cross appeal; except in relation to the items in the account. But in case there is no error in the account, the appellant cannot succeed on his appeal if the decree is more favorable to him than it ought to have been. Should it therefore be found, upon examination, that the surrogate was wrong in supposing that Rhoda Delaney was entitled to share in the distribution as one of the residuary legatees, yet if he was equally wrong in deciding that the other children of the sister and brothers of the testator were entitled to take per capita, the appeal must of course be dismissed. For in that case the appellant would only be entitled to one twenty-fourth part of the residuary estate, instead of one twenty-third part thereof, awarded to him by the decree appealed from. It may be necessary, for that reason, to examine both of those questions, if it should be found that the appellant is in a situation, in other respects, to render a decision of either important in disposing of his appeal.
The claim to charge the executors with the cow and hogs, which were left unappraised, I think was properly rejected by the surrogate. It is fairly inferrible from the evidence that the testator had been living upon the farm of his father, for a great number of years, under an agreement that certain stock received with the farm and specified in that agreement should be returned when he left the farm. Although none of the original stock was in existence at the death of the testator, he was still bound to return it in kind or value. And at the time of the appraisal some of the property was left unappraised, for the purpose of satisfying this demand in behalf of the father. The admission of one of the executors, to the witness Rogers, that the fat cow and hogs belonged to the testator, does not prove that they were not left out of the inventory to satisfy that claim. Davis, one of the appraisers, states that the agreement was produced at the time of the. appraisal, and that the hogs and some other property were left out of the in[86]*86ventory to satisfy that claim •, but that no more property was left out than was sufficient to fulfil the agreement. It perhaps would have been more correct, where the substituted stock had not been agreed upon by the testator and his father in the lifetime of the former, to have inventoried the whole stock, and then for the executors to have turned out enough of the appraised property to satisfy the claim. But the result would have been the same to the legatees.
I do not understand by the petition of appeal that the appellant claims that the executors should be charged with the amount of the usurious note of Langworthy ; although such a claim was made before the surrogate. The only objection to the account in this respect, in the petition of appeal, as I understand it, is that the surrogate improperly charged the estate with the costs of the suit upon that note. Not having claimed the amount of the note in the petition of appeal, it was not competent for the appellant’s counsel, upon the hearing of the appeal, to insist that the decree was erroneous in that respect, under the provisions of the 118th rule of this court. But if that claim was properly made here, I am satisfied the executors ought not to be charged with the note or any part thereof. The testimony shows that the note was usurious and void. Lang-worthy may have proposed to secure the amount actually due if they could agree what it was. But as the executors had no means of knowing whether the whole was or was not due, for Langworthy stated he did not know that he could prove the usury, they were not in a situation to compromise the debt, even if Langworthy had proposed to secure any specific amount. Their only safe course, therefore, was-to put the note in suit, to recover the amount thereof if possible.
They also acted in good faith, and for the apparent interest of the estate, in bringing the suit in the name of a third person, under the advice of counsel, for the purpose, if possible, of avoiding the forfeiture of the debt in case the usury was proved. And for that reason I think the surrogate was right in allowing them the whole costs of [87]*87the litigation j although they might perhaps have been excused from paying the defendant’s costs if the suit had been brought in their own names, as executors. Where an executor in such a case acts in good faith, under the advice of counsel and apparently for the interest of the estate he represents, he ought not to be subjected to a personal loss because the result of his exertions was not quite as beneficial to the estate as a different course of proceeding might have been.
The item of taxes which the respondent Samuel Hoxie insists should have been allowed him, in reduction of the balance due, is not supported by any thing contained in the surrogate’s return. And not having himself appealed, the correctness of the decree, as between him and his co-executor, or as between him and any other of the respondents, is not a proper subject of review here. In relation to some of the matters stated in his answer to the petition of appeal, it may be proper to say, it is stated in the surrogate’s return that it appeared, from the admissions of the executors that of the assets which were remaining in their hands unexpended, John Hoxie had $351,35, and Solomon Hoxie had $1137,66. And these are the sums which they are respectively directed to pay in satisfaction of the debts and legacies remaining unpaid. I presume this includes interest on the fund for the time they were chargeable with interest, and without making them any allowance for over payments; as the surrogate had a right to suppose the executors had taken the proper securities to enable them to recover back the excess, if any of the legatees had received more than their distributive shares.
The remaining question is as to the share of the appellant in the residuary estate as ascertained by the surrogate. And if the appellant is right in the claim made in his petition of appeal, that he was entitled to one twenty-second part thereof, then his distributive share was nearly $8 more than it was declared to be by the decree of the surrogate. And instead of having been overpaid $119,27 and interest thereon, the amount which he received from the executors [88]*88more than his due, was but $111,34, exclusive of interest. As there was nothing due to him upon the accounting before the surrogate, he having already received from the executors more than he was entitled to in any event, I have very great doubts whether he had any right to appeal from the decree which does not direct him to pay back any thing. But as the decree declaring his rights as one of the residuary legatees under the will may, in a suit against him to recover back the excess he has received beyond his distributive share, be considered as conclusively settling what the amount of such distributive share was, I shall proceed to examine the questions presented by this part of the appeal. And if it turns out that he was entitled to a twenty-second part of the residuary estate, the decree must be modified so as to declare his rights in conformity with the decision in this respect.
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The Chancellor.
The respondents in this case misapprehended the effect of the 118th rule of this court if they [85]*85supposed the final decree of the surrogate could be modified in their favor, where it was not found to be erroneous as against the appellant, without bringing a cross appeal; except in relation to the items in the account. But in case there is no error in the account, the appellant cannot succeed on his appeal if the decree is more favorable to him than it ought to have been. Should it therefore be found, upon examination, that the surrogate was wrong in supposing that Rhoda Delaney was entitled to share in the distribution as one of the residuary legatees, yet if he was equally wrong in deciding that the other children of the sister and brothers of the testator were entitled to take per capita, the appeal must of course be dismissed. For in that case the appellant would only be entitled to one twenty-fourth part of the residuary estate, instead of one twenty-third part thereof, awarded to him by the decree appealed from. It may be necessary, for that reason, to examine both of those questions, if it should be found that the appellant is in a situation, in other respects, to render a decision of either important in disposing of his appeal.
The claim to charge the executors with the cow and hogs, which were left unappraised, I think was properly rejected by the surrogate. It is fairly inferrible from the evidence that the testator had been living upon the farm of his father, for a great number of years, under an agreement that certain stock received with the farm and specified in that agreement should be returned when he left the farm. Although none of the original stock was in existence at the death of the testator, he was still bound to return it in kind or value. And at the time of the appraisal some of the property was left unappraised, for the purpose of satisfying this demand in behalf of the father. The admission of one of the executors, to the witness Rogers, that the fat cow and hogs belonged to the testator, does not prove that they were not left out of the inventory to satisfy that claim. Davis, one of the appraisers, states that the agreement was produced at the time of the. appraisal, and that the hogs and some other property were left out of the in[86]*86ventory to satisfy that claim •, but that no more property was left out than was sufficient to fulfil the agreement. It perhaps would have been more correct, where the substituted stock had not been agreed upon by the testator and his father in the lifetime of the former, to have inventoried the whole stock, and then for the executors to have turned out enough of the appraised property to satisfy the claim. But the result would have been the same to the legatees.
I do not understand by the petition of appeal that the appellant claims that the executors should be charged with the amount of the usurious note of Langworthy ; although such a claim was made before the surrogate. The only objection to the account in this respect, in the petition of appeal, as I understand it, is that the surrogate improperly charged the estate with the costs of the suit upon that note. Not having claimed the amount of the note in the petition of appeal, it was not competent for the appellant’s counsel, upon the hearing of the appeal, to insist that the decree was erroneous in that respect, under the provisions of the 118th rule of this court. But if that claim was properly made here, I am satisfied the executors ought not to be charged with the note or any part thereof. The testimony shows that the note was usurious and void. Lang-worthy may have proposed to secure the amount actually due if they could agree what it was. But as the executors had no means of knowing whether the whole was or was not due, for Langworthy stated he did not know that he could prove the usury, they were not in a situation to compromise the debt, even if Langworthy had proposed to secure any specific amount. Their only safe course, therefore, was-to put the note in suit, to recover the amount thereof if possible.
They also acted in good faith, and for the apparent interest of the estate, in bringing the suit in the name of a third person, under the advice of counsel, for the purpose, if possible, of avoiding the forfeiture of the debt in case the usury was proved. And for that reason I think the surrogate was right in allowing them the whole costs of [87]*87the litigation j although they might perhaps have been excused from paying the defendant’s costs if the suit had been brought in their own names, as executors. Where an executor in such a case acts in good faith, under the advice of counsel and apparently for the interest of the estate he represents, he ought not to be subjected to a personal loss because the result of his exertions was not quite as beneficial to the estate as a different course of proceeding might have been.
The item of taxes which the respondent Samuel Hoxie insists should have been allowed him, in reduction of the balance due, is not supported by any thing contained in the surrogate’s return. And not having himself appealed, the correctness of the decree, as between him and his co-executor, or as between him and any other of the respondents, is not a proper subject of review here. In relation to some of the matters stated in his answer to the petition of appeal, it may be proper to say, it is stated in the surrogate’s return that it appeared, from the admissions of the executors that of the assets which were remaining in their hands unexpended, John Hoxie had $351,35, and Solomon Hoxie had $1137,66. And these are the sums which they are respectively directed to pay in satisfaction of the debts and legacies remaining unpaid. I presume this includes interest on the fund for the time they were chargeable with interest, and without making them any allowance for over payments; as the surrogate had a right to suppose the executors had taken the proper securities to enable them to recover back the excess, if any of the legatees had received more than their distributive shares.
The remaining question is as to the share of the appellant in the residuary estate as ascertained by the surrogate. And if the appellant is right in the claim made in his petition of appeal, that he was entitled to one twenty-second part thereof, then his distributive share was nearly $8 more than it was declared to be by the decree of the surrogate. And instead of having been overpaid $119,27 and interest thereon, the amount which he received from the executors [88]*88more than his due, was but $111,34, exclusive of interest. As there was nothing due to him upon the accounting before the surrogate, he having already received from the executors more than he was entitled to in any event, I have very great doubts whether he had any right to appeal from the decree which does not direct him to pay back any thing. But as the decree declaring his rights as one of the residuary legatees under the will may, in a suit against him to recover back the excess he has received beyond his distributive share, be considered as conclusively settling what the amount of such distributive share was, I shall proceed to examine the questions presented by this part of the appeal. And if it turns out that he was entitled to a twenty-second part of the residuary estate, the decree must be modified so as to declare his rights in conformity with the decision in this respect. But even in that case it will not be necessary to alter the decree as to any other of the residuary legatees; who have not thought proper to question the correctness of the surrogate’s decision by joining in the appeal.
The fact is undisputed that Rhoda Hoxie, who was one of the reputed children of the testator’s brother John, was not bom in lawful wedlock. And the law appears to be settled that where there are legitimate children in existence at the time of making the will, so as to satisfy the words of the devise or bequest in their primary sense, an illegitimate child cannot take under a general devise or bequest to children, as a class, unless there is something appearing upon the face of the will to show that the testator intended to include others besides legitimate children. (Cartwright v. Vawdry, 5 Ves. Rep. 530. Harris v. Lloyd, Turn. & Russ. Rep. 310. Swaine v. Kinnerly, 1 Ves. & Bea. 469.) Here the children of John Hoxie are not named in the will; nor is there any thing on the face of the will to show the testator did not use the word children in its primary or legal sense. The testimony dehors the will renders it probable that if he had thought of it he would have used words sufficient to include Rhoda as one of the [89]*89¡residuary legatees. He has not done so, however; and it is not in the power of the court to correct the mistake, or to make a new will for him.
There may perhaps he some doubt whether the testator hj the words a he divided equally among the children of my sister Mary, my brother Solomon, and my brother John” intended the children of each should take an equal share of the residuary property, or that each of the children of the three should share equally among themselves. The settled rule of construction in such cases, however, seems to be that all the legatees take per capita unless there is something in the will itself indicating a different intention on the part of the testator. Thus in Blacklee v. Webb, (2 Peer Wms. Rep. 383,) where the testator, having had five children, one of whom had died leaving children, devised his residuary estate to three of his surviving children, and to the children of the other who was living, and of the one who was dead, Lord Chancellor King decided that the grand children of the testator were entitled to take equally with the three children per capita ; especially as the parent of some of the grand children was living. (See also Northey v. Strange, 1 P. Wms. 343; Butler v. Stratton, 3 Bro. C. C. 367; Wicker v. Mitford, Harg. Law Tracts, 513.) I conclude therefore that the appellant was entitled to $181,84 as his distributive share of the estate.
The decree of the surrogate must be modified, by declaring the appellant’s rights accordingly; and deducting the $7,93, and also $2,42 for the rateable proportion of the interest, from the amount which by the decree he is stated to have received beyond his distributive share; leaving the amount of excess $145,22 on the 26th of October, 1836. The decree may be so far modified, although the administrator of Rhoda Delaney is not before the court on this appeal. But I cannot alter the decree which the payment of a distributive share to her, so as to divide it among the other residuary legatees who have not appealed, in the situation in which the case now stands. Although the husband is entitled to administer upon his wife’s [90]*90estate, he must take out letters of administration thereon to enable him to represent her rights in court.
Neither party is to have costs as against the other upon this appeal.