Mr. Justice SWAYNE
delivered the opinion of the court.
This is an appeal in equity from the decree of the Supreme Court of the District of Columbia. The record is voluminous, and contains numerous exhibits, and much of detail, which we have not found it necessary to consider. The material facts lie within a narrow compass, and the questions presented for our determination are neither numerous nor difficult of solution. On the 22d of April, 1851, the testatrix and the appellee entered into a contract for the erection by the latter of a large building in the city of Washington. She was to pay for the structure the sum of $24,000; $5000 on the 1st of July, 1851; $5000 on the 1st of October following, provided certain parts of the building were then ready for occupation; and the remaining $14,000 on the 1st of January, 1860, with interest, as stipulated. The first instalment was duly paid. Nothing has been paid since. Possession of those parts of the building to be first completed was delivered in December, 1851, and of the residue in April,
1852. In May, 1852, Jones sued for the instalment due on the 1st of October, 1851, and recovered. The judgment was reversed by this court.
The declaration was then amended by withdrawing the special counts and enlarging the
ad quod damnum
to $40,000, and a verdict and judgment were recovered for $22,149, and interest. This judgment was also reversed.
The case was again tried, and a verdict and judgment were recovered for $20,136.23, with interest from the 5th of April, 1852. The auditor of the court was directed to ascertain the amount of assets in the hands of Ingle, the administrator, which could be applied in payment of the debt. He reported that there were no assets available for that purpose. Jones thereupon filed this bill to subject the real estate therein described to the payment of his demand.
It is insisted by the counsel for the appellants that the judgment is erroneous in form, and is, in fact, only interlocutory. This objection is well taken. According to the statutes of Maryland, which are in force in the county of Washington, the judgment, under the circumstances, should have been entered only for assets as they should thereafter come into the hands of the administrator. But this fact is immaterial. The case is governed by the local law. That law makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrator are confined to the personal estate, and never extend beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect, as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved in all respects as if there had been no prior proceeding to effect its collection,
and the statute of limitations may be pleaded with the same effect as if there had been no prior recovery against the personal representative.
We have examined with care the proofs in the record of the complainant's demand as set forth in the bill, and are satisfied with the amount found by the decree. It could be productive of no good to vindicate this view of the subject, by entering into an analytical examination of the testimony. We are not unmindful of the length of time through which the complainant has been pursuing his remedy, nor of the verdicts which have been rendered in the trials at law. They were the results of vigorously contested litigation, after the most elaborate preparation of the case. Nor are we unmindful that the court below, in the case before us, came substantially to the same conclusion. Our judgment, however, has been formed upon grounds wholly apart from these considerations. If the question were
res integra
in this case, and now for the first time to be passed upon, we should have no difficulty in sustaining the decree. We think the full amount found by the court is justly due.
Ann K,. Dermott, by her will, appointed eight executors, and clothed them with important powers and duties. They were to have the entire management aud control of the estate during the uncertain time specified. They were to rent out the real estate. Out of the rents and the personal estate, not otherwise disposed of, they were to pay her debts, without regard to limitation of time; to pay her funeral expenses ; several legacies, amounting in the aggregate to between $3000 and $4000; to pay an annuity of $400, while their duties were executory, after which it was to be a charge upon the estate; they were to pay, in their discretion, certain debts of her brother; they were to build a vault to receive her remains, and they were authorized to sell two cemetery lots. The power was given to mortgage, if found necessary to pay debts. After the debts and legacies were all satisfied, the entire estate was to be delivered over to twenty trustees,
named in the will, to whom and their heirs it was devised, to enable- them to found and support a female orphan asylum. The beneficiaries were to be such destitute white orphans as the trustees, or any corporation which might succeed them, should select. The provision for this charity is admitted on both sides to be void. The statute of the 43d Elizabeth never was in force in Maryland. The trust resulted for the benefit of the heirs-at-law.
All the persons named as executors declined to act, except one of them, John P. Ingle, who qualified, and took out letters testamentary. He died, whereupon the defendant, John H. Ingle, was appointed administrator, with the will annexed. The will provides, that if the surviving executor should die while the trusts are executory, their execution should devolve upon such person or persons as the vestries of St. John and Trinity Churches should elect to go on and complete their execution, so far as they were committed to the executors, and she desired that letters of administration, with the will annexed, or other competent authority, should be granted to the person or persons so elected. The vestries made no election. Letters were granted by the judge of probate to John H. Ingle, as if the will contained no such provision.
■The question whether the administrator thus appointed could exercise any authority as to the real estate is deemed an important one by the counsel on both sides, and has been fully argued. The Maryland statutes which bear upon the subject provide for the appointment of an administrator
de bonis non,
with the will annexed, but are silent as to his powers. By the common law his duties are confined to the personal estate, unadministered by his predecessor. Whatever authority he may possess as to the real estate must be derived from the will. If not found there in express terms, or by necessary implication, it has no existence. Hence the test, in all such eases, is the intention of the testator.
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Mr. Justice SWAYNE
delivered the opinion of the court.
This is an appeal in equity from the decree of the Supreme Court of the District of Columbia. The record is voluminous, and contains numerous exhibits, and much of detail, which we have not found it necessary to consider. The material facts lie within a narrow compass, and the questions presented for our determination are neither numerous nor difficult of solution. On the 22d of April, 1851, the testatrix and the appellee entered into a contract for the erection by the latter of a large building in the city of Washington. She was to pay for the structure the sum of $24,000; $5000 on the 1st of July, 1851; $5000 on the 1st of October following, provided certain parts of the building were then ready for occupation; and the remaining $14,000 on the 1st of January, 1860, with interest, as stipulated. The first instalment was duly paid. Nothing has been paid since. Possession of those parts of the building to be first completed was delivered in December, 1851, and of the residue in April,
1852. In May, 1852, Jones sued for the instalment due on the 1st of October, 1851, and recovered. The judgment was reversed by this court.
The declaration was then amended by withdrawing the special counts and enlarging the
ad quod damnum
to $40,000, and a verdict and judgment were recovered for $22,149, and interest. This judgment was also reversed.
The case was again tried, and a verdict and judgment were recovered for $20,136.23, with interest from the 5th of April, 1852. The auditor of the court was directed to ascertain the amount of assets in the hands of Ingle, the administrator, which could be applied in payment of the debt. He reported that there were no assets available for that purpose. Jones thereupon filed this bill to subject the real estate therein described to the payment of his demand.
It is insisted by the counsel for the appellants that the judgment is erroneous in form, and is, in fact, only interlocutory. This objection is well taken. According to the statutes of Maryland, which are in force in the county of Washington, the judgment, under the circumstances, should have been entered only for assets as they should thereafter come into the hands of the administrator. But this fact is immaterial. The case is governed by the local law. That law makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. The duties of the administrator are confined to the personal estate, and never extend beyond it. If that be insufficient to discharge the debts, and it be necessary to resort to the realty of the deceased for that purpose, a proceeding against the heir must be instituted. In that event, whatever has been done by the administrator is without effect, as to the property sought to be charged. A judgment against the administrator is not evidence against the heir. The demand must be proved in all respects as if there had been no prior proceeding to effect its collection,
and the statute of limitations may be pleaded with the same effect as if there had been no prior recovery against the personal representative.
We have examined with care the proofs in the record of the complainant's demand as set forth in the bill, and are satisfied with the amount found by the decree. It could be productive of no good to vindicate this view of the subject, by entering into an analytical examination of the testimony. We are not unmindful of the length of time through which the complainant has been pursuing his remedy, nor of the verdicts which have been rendered in the trials at law. They were the results of vigorously contested litigation, after the most elaborate preparation of the case. Nor are we unmindful that the court below, in the case before us, came substantially to the same conclusion. Our judgment, however, has been formed upon grounds wholly apart from these considerations. If the question were
res integra
in this case, and now for the first time to be passed upon, we should have no difficulty in sustaining the decree. We think the full amount found by the court is justly due.
Ann K,. Dermott, by her will, appointed eight executors, and clothed them with important powers and duties. They were to have the entire management aud control of the estate during the uncertain time specified. They were to rent out the real estate. Out of the rents and the personal estate, not otherwise disposed of, they were to pay her debts, without regard to limitation of time; to pay her funeral expenses ; several legacies, amounting in the aggregate to between $3000 and $4000; to pay an annuity of $400, while their duties were executory, after which it was to be a charge upon the estate; they were to pay, in their discretion, certain debts of her brother; they were to build a vault to receive her remains, and they were authorized to sell two cemetery lots. The power was given to mortgage, if found necessary to pay debts. After the debts and legacies were all satisfied, the entire estate was to be delivered over to twenty trustees,
named in the will, to whom and their heirs it was devised, to enable- them to found and support a female orphan asylum. The beneficiaries were to be such destitute white orphans as the trustees, or any corporation which might succeed them, should select. The provision for this charity is admitted on both sides to be void. The statute of the 43d Elizabeth never was in force in Maryland. The trust resulted for the benefit of the heirs-at-law.
All the persons named as executors declined to act, except one of them, John P. Ingle, who qualified, and took out letters testamentary. He died, whereupon the defendant, John H. Ingle, was appointed administrator, with the will annexed. The will provides, that if the surviving executor should die while the trusts are executory, their execution should devolve upon such person or persons as the vestries of St. John and Trinity Churches should elect to go on and complete their execution, so far as they were committed to the executors, and she desired that letters of administration, with the will annexed, or other competent authority, should be granted to the person or persons so elected. The vestries made no election. Letters were granted by the judge of probate to John H. Ingle, as if the will contained no such provision.
■The question whether the administrator thus appointed could exercise any authority as to the real estate is deemed an important one by the counsel on both sides, and has been fully argued. The Maryland statutes which bear upon the subject provide for the appointment of an administrator
de bonis non,
with the will annexed, but are silent as to his powers. By the common law his duties are confined to the personal estate, unadministered by his predecessor. Whatever authority he may possess as to the real estate must be derived from the will. If not found there in express terms, or by necessary implication, it has no existence. Hence the test, in all such eases, is the intention of the testator. Many of the duties enjoined upon the executors were foreign to those which come within the scope of their ordinary func
tions. Such a power never passes by devolution to an administrator, unless it be clear that it was the intention of the testator that he should become the donee of the power, in place of the executor appointed by the will. If no provision be made by the will for such substitution, the power does not become extinguished, but the case falls within the category of those where a court of equity will not permit a trust to fail for the want of a trustee, but will appoint one, and clothe him with authority adequate to the duties to be discharged.
In the case under consideration it is clear the testatrix did not intend that any one not clothed with the sanctions she prescribed should be intrusted with any duty touching her estate. The administrator occupies the same relation to the realty as if he were administrator
de bonis non
without the will annexed, and the testatrix had died intestate. This disposes of the questions raised as to the statute of limitations. The administrator alone has interposed that defence. It cannot avail those who represent the real estate, and who are the only parties in interest in this .proceeding.
It was proper for the court to appoint a receiver. Until this was done there was no one authorized to take charge of the property and receive the rents.
Upon looking carefully into the record we find no foundation for the imputation that the answers of the heirs-at-law were obtained by fraud or contrivance. It was within the discretion of the court to allow them to be taken off the files and the parties to answer
de novo,
or to overrule the application made for that purpose. We think this discretion was not abused.
It was strenuously insisted that the court erred in refusing further time to the defendants to take testimony. The earnestness with which the point was pressed has induced us to examine it with more care than we should otherwise have deemed necessary. The cause was put at issue on the 6th of March, 1866. The 69th rule in equity allowed the parties
three months thereafter to take their testimony. The complainant commenced taking his on the 14th of that month. Eetween that time and the 23d, inclusive, he examined nine witnesses. Notice was given to the defendant’s counsel. He appeared and cross-examined the witnesses so far as he chose to do so. An adjournment was ordered by the examiner, from the 23d of March until the 2d of June. A single deposition relating to a formal matter was then taken. The examiner thereupon closed the testimony and returned it to the court. It does not appear that the defendants made any objection to the adjournment, or manifested any desire to take testimony during the period of more than two months between the time of the adjournment and the time to which it extended. The application for further time was heard and overruled by the court on the 8th of June. The rule referred to provides that “ three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time.” The three months are allowed for the taking of testimony by both parties. The limitation applies as much to defendants as to complainants. It is for the court or judge to decide whether further time shall be given or refused, and ordinarily the determination of the question would not be deemed a fit subject for review by this tribunal. Cases may, however, occur of so flagrant a character that it would be our duty to correct the error. In the case before us the complainant’s testimony was substantially closed on the 23d of March. The defendants had from that time until the 6th of June to take testimony on their part in the regular way. No reason is given why they neglected to do so. Indeed they were bound to proceed as soon as the cause was at issue. They had no right to wait until the complainant was through. They knew from the previous trials at law what his testimony would be. If there was any surprise, and an extension of time was necessary, doubtless it would have been givenj The complainant was pursuing the residue of his compensation for the house he had built. He had delivered
possession years before. The house was large and valuable. The proof is that it rented for from seven to eight thousand dollars per year. His expenditures had been large. He had received less than a quarter of the contract price, and nothing for his.extra work. He had recovered two verdicts for the amount claimed. He had been engaged for more than fourteen years in a bitter and expensive litigation, in which every possible impediment had been thrown in his way. In the light of these facts we are not prepared to say that the court below erred in the ruling complained of.
There is no error apparent on the face of the decree. It finds the amount due to the complainant, and that it was necessary to sell the real estate described in the bill to pay it. It orders the premises to be sold in the manner prescribed, and the proceeds to be held subject to the further order of the court. The auditor had found and reported the deficiency of assets requisite to give the court jurisdiction and to entitle the complainant to the relief sought by his bill. The necessity of making the sale, if the complainant’s demand was to be paid, was clear upon the proofs, and was not denied by the answers. The amount of the liabilities to be paid out of the proceeds might have been ascertained before the decree of sale was made, but that was not indispensable. It may as well be done when the sale is confirmed. The rights of all parties in respect to the fund can then be ascertained, and payment and distribution be ordered accordingly. It is not alleged that the premises were susceptible of division, or if they were, that it was not necessary to sell the whole. No such issue is made in the pleadings, and no such proof is found in the testimony.
It is now nearly eighteen years since the complainant commenced a suit to recover what has been adjudged to him in this case. The conflict has been flagrant ever since. The demand seems to us to be simple and just. We find no error in the record, and the decree of the court below is
Affirmed.