Scire facias. The writ set forth: a judgment recovered by the State against the defendant, April Term, 1816, for £500, in a suit prosecuted upon a bond of the defendant as surety of Job Smith and Stacey Smith, executors of O. Smith; the will of O. Smith; the amount of O. Smith's estate; and that the said legatees claimed each one-fifth of the residue of the personal estate.
Defendant moved for a nonsuit on two grounds: 1. Because no probate was exhibited. 2. Because it did not appear that defendant had tendered a refunding bond.
PER CURIAM.
It may be doubted whether this case is within the words of the Act, 1 Del. Laws 420, but we consider it within the equity of the Act. We are not inclined to narrow the security the law intended to afford to the estates of deceased persons. The probate must be made by the legatees, who are the real plaintiffs in the cause. It will, however, be sufficient if the probate is now made, as it may be exhibited in any stage of the cause before the nonsuit takes place. Upon the second point, the Court are equally divided and no opinion can be given.
A probate was then made by Obadiah Smith, one of the legatees, and offered to the jury.
The defendant contended that O. Smith and P. Smith, having elected to join in the scire facias, must stand or fall together.
PER CURIAM. The interests of the legatees continue several and distinct, notwithstanding they have joined in the scire facias. It is irregular, but it is every day's practice.
Nonsuit as to P. Smith.