is to be kept together till they shall be paid. The profits are of course to be applied to that object. If this fund amounted, before the 10th day of January, 1820, when the first bond from J. J. Maxwell fell due, to a sufficient sum for the payment of debts and legacies, the right of the legatees to the three bonds then vested; if it was not sufficient on that day it may be doubted whether such part of the first bond as was necessary for this primary object might be brought to its aid immediately. We suppose it might. A codicil to the will is dated the 18th day of June, 1819, and the will and codicil were proved on the 27th of the succeeding month. The executors qualified in the month of December; having ascertained, they say in their answer, the adequacy of the fund provided for debts and legacies, they commenced the division of the estate. So far as the will has been considered, it is obvious that the right of the legatees, to whom the two parts of the three first bonds due from Maxwell were bequeathed, was vested. Their right to the first bond may be more questionable. If part of the fund, which was applicable in the first instance to debts and legacies, could not be made available immediately, and the first bond or any part of it was substituted for debts which could not be collected, it cannot be doubted that those debts, when collected, ought to replace the bond so substituted. The testimony in the cause does not show, with sufficient certainty, how this fact stands. It is remarkable that this first bond was applied by the executors before the 10th of January, 1820, when it became due. They state this fact in their answer. But we are decidedly of opinion that this precipitate appropriation of the bond could not affect the rights of the parties. They must remain, as they would have stood had the bond remained uncollected, till it be came payable. The contest in this suit would either not have arisen, or would have been confined to the first bond, had things remained as they stood before the 10th day of January, 1820. But on that day the buildings on lots Nos. 6 and 7 were consumed by fire. and considered themselves in the same situation as if it had been completed before the buildings were consumed. Suppose this opinion to be correct, ought they not also to have considered the bonds as delivered?. This also was a specific legacy; and after being vested, stands, we conceive, on equal ground with other specific legacies. These bonds do not constitute the fund on which the testator charges these $10,000, in the unlooked-for event that the surplus of his estate should not be sufficient to raise it. He does not charge this sum on the principal, but on the profits of his estate; and the whole is to be kept together in order to raise it. It is obvious from the whole will, that these bonds do not constitute a part of that surplus, compre. hending debts; and in this particular part of it, when he speaks of debts, it is of debts due. No one of these bonds was due at the date of the will, or of the death of the testator. It is, then, we think, apparent, that the application of these bonds towards raising the sum of $10,000 was a misapplication of assets. If the estate had really been delivered when the event occurred, the executors ought to have retained their rights upon it, to satisfy this contingent claim, and we presume that the property would have been liable to it in the hands of devisees and legatees. But the plaintiffs in error contend, that should they have misconstrued the will of their testator, still their misconstruction binds the legatees, because the testator says: "Whereas my will is lengthy, and it is possible I may have committed some error or errors, I therefore authorize and empower, as fully as I could do myself, if living,a majority of my acting executors-my wife to have a voice as executrix-to decide in all cases, in case of any dispute or contention shall be final and conclusive without any resort to a court of justice." Clauses of this description have always received such judicial construction as [*680 would comport with the reasonable intention of the testator. Even when the forfeiture of the legacy has been declared to be the penalty of not conforming to the injunction of the will, courts have considered it, if the legacy be not given over, rather as an effort to effect a desired object by intimidation, than as concluding the rights of the parties. If an unreasonable use be made of the power, one not foreseen, and which could not be intended by the testator, it has been considered as a case in which the general power of courts of justice to decide on the rights of the parties ought to be exercised. This principle must be kept in view, in con In that event, the testator had directed that his executors should, for the purpose of replacing the buildings, hold all his estate to gether until they can add $10,000 to what may be received on insurance. He adds: "In case of such an accident, if necessary, in order not to delay rebuilding, my executors will resort to a loan from the bank or banks." "Whereas there is no doubt but there must be a considerable surplus fund of my estate, by debts due 679*] or crops on hand, or near *made, after my executors have paid all my debts, and legacies, which my wife will come in for; if my ex-struing the clause now under consideration. ecutors discover that by such surplus that the same will not be equal to $10,000, in that case it is my will that they continue all my estate together until they can make up $10,000." Instead of conforming to this direction of the will; instead of keeping the estate together; the executors have applied the remaining two bonds payable the 10th of January, 1821, and the 10th of January, 1822, to this object. They say, that having commenced the delivery of the estate before this event took place, they thought themselves bound to complete it; The acting executors, and executrix are empowered, in all cases of dispute or contention, to determine what is the intention of the testator; and their decision is declared to be final. This power is given, in the apprehension that he may have committed error. It is to be exercised in order to ascertain his intent in such cases. It certainly does not include the power of altering the will. It cannot be contended that this clause would protect the executors in refusing to pay legacies altogether, or in pay ing to A a legacy bequeathed to B, or in any other plain deviation from the will. In such case, what would be the remedy of the injured party? Is he concluded by the decision of the executors, or may he resort to a court of justice? But one answer can be given to these question. So gross a departure from the manifest intent of the testator cannot be the result of an honest endeavor to find that intent; and it must be considered as a fraudulent exercise of a power, given for the purpose of preserving peace, and preventing expensive and frivolous litigation. But who is to determine what is a gross misconstruction of the will, if the party who conceives himself injured may not submit his case to a court of justice? And if his case may be brought before a court, must not that court construe the will rightly? This is not the only objection which the plaintiffs in error must encounter, in supporting their construction of this clause. The executors have not, we think, this power, unaided by the executrix. It is given to a majority of the acting executors, "his wife to have a voice as executrix." Her participating in the decision is indispensable to its validity. If this power was given to her solely, in her character as executrix, it is seriously doubted whether it can be exercised till she assumes that character. the court. The rights of each individual depend upon the number who are entitled, and this number is a fact which must be inquired into before the amount to which anyone is entitled can be fixed. If this fact were to be examined in every case, it would subject the executors to be harassed by a multiplicity of suits, and if it were to be fixed by the first decree, that decree would not bind persons who were not parties. The case cannot be distinguished from the rule which is applied to residuary legatees. The bill filed in this case, does not even state the number of persons belonging to the different families, nor to that family in whose behalf this suit is brought. Nor does it assign any reason for not making the proper parties. It does not allege that the other legatees refuse to join, as plaintiffs, or that they cannot be made defendants. For this cause the decree must be reversed, and the case remanded to the Circuit Court, that the plaintiffs may amend their bill. *The objections to the report are not [*682 entirely unfounded, and it is not quite satisfactory. It does not, we think, show with sufficient clearness, whether the plaintiffs in that court were entitled to the first bond. But as the case must go back to amend the bill, a new report will of course be made; and if that shows that the funds of the estate were sufficient to pay the debts and legacies, without applying this bond to that purpose, the plaintiffs below will be entitled to that also. This cause came on, etc. In consideration whereof, it is decreed and ordered by this Even had she united with the executors, this 681*] would certainly be a case which might well be considered as an exception from the general operation of the power. The bonds to which it was applied, are the bonds of one of the executors, and it was exercised by bestow-court, that the decree of the Circuit Court in ing them on the executrix, instead of the persons to whom they were bequeathed by the testator. In doing this, the executors have plainly misconstrued the will. The testator had not charged the $10,000, which were to be raised in order to rebuild the houses that were destroyed by fire, on these bonds, but on a different fund. It is, therefore, the very case put, of paying to the executors the legacy bequeathed to other persons. It may also be observed, that neither of the executors, nor Mrs. Pray, say in their answer, that this diversion of these bonds to a different purpose from that directed by the testator, was made from a belief that it was his intention, in the event which had occurred. They refer to the clause and rely upon it, as if it had empowered them to do whatever they thought best, in the progress of their administration; instead of doing what, in their best judgment, they believed to be his intention. But, however correctly the will of the testator may have been construed in the Circuit Court--and we think it was construed correctly at least so far as respects the two last bonds mentioned in item 51 of the will of John Pray, deceased-other objections have been taken to the proceedings in the Circuit Court, which seem to be well founded. The legacy for which this suit is instituted, is given jointly to several persons in different this cause be, and the same is hereby reversed and annulled; and it is further ordered, that the cause be remanded to the said Circuit Court, for further proceedings to be had therein, and that the plaintiffs may amend their bill. *WILLIAM B. ALEXANDER, Francis [*683 Swann, and Thomas Swann, Plaintiffs in Error, V. ELISHA BROWN, Defendant in Error. Execution practice. Under the law of Virginia, which directs the sheriff holding an execution against the goods and effects of defendants, to take forthcoming bonds, for the property levied upon by the execution, and authorizes execution to issue for the amount of the debt due upon the original execution, after ten days' notice to the obligors in the bond of the motion for execution, the property levied on not tion of the bond; if the notice given to the obligors having been re-delivered, according to the condiof the plaintiff's intention to proceed, is sufficiently explicit to render mistake impossible, it will be sustained, although the whole of the defendants in the original execution may not be named in the notice. Nice and technical objections to the notice, where every purpose of substantial justice is [684] effected, ought not to be favored. families. The legatees take equally, and the ERROR for the Circuit Court of Alexandria. numbers in neither family are ascertained by the will. Under such circumstances, we think all the claimants ought to be brought before This case was argued by Mr. Swann for the plaintiffs, and Mr. Jones for the defendant. The material facts of the case appear in the opinion of the court. Mr. Chief Justice Marshall delivered the opinion of the court: that it shall be served ten days before the motion. Its sole purpose is to inform the party that the motion is to be made, thereby enabling that for any other reasons, executions ought not to be awarded. If it gives him the information, which enables him to do this, it effects all the substantial purposes of justice. A false recital of the execution, would be fatal, because it might mislead the obligor; but in this case, the execution was against William B. Alexander, though not against him alone. He could not mistake the case in which the motion was to be made, because it is admitted that this was the execution on which the bond was taken, and the only execution in which the said William B. Alexander was a party. This was a motion to the Circuit Court for the District of Columbia, sitting in Alexan-him to show that the money has been paid; or, dria, for an award of execution upon a forthcoming bond, taken in pursuance of the execution law of Virginia. That law directs, that if the owner of any goods or chattels, which shall be taken by virtue of a writ of fieri facias, shall tender sufficient security to have the same goods and chattels forth coming, at the day of sale; it shall be lawful for the sheriff or other officer, to take bond from such debtor and securities, payable to the creditor, reciting the service of such execution, and the amount of the money or tobacco due thereon, and with condition to have the money or tobacco forthcoming, at the day of sale appointed by such sheriff or other officer; and shall thereupon suffer the said goods and chattels to remain in the possession and at the risk of the debtor, until that time. And if the owner of such goods and chattels shall fail to deliver up the same, according to the condition of the bond, or pay the money or tobacco mentioned in the execution, such sheriff or other officer shall return the bond to the office of the clerk of the court from whence the execution issued, to be there safely kept, 684] and to have the force of a judgment; and thereupon it shall be lawful for the court, when such bond shall be lodged, upon the motion of the person to whom the same is payable his executors or administrators, to award execution for the money and tobacco therein mentioned, with interest thereon from the date of the bond, till payment, and costs; provided the obligors, their executors or administrators, or such of them against whom execution is awarded, have ten days' previous notice of such mo- Pleading-letters of administration-administion. In this case, the condition of the bond recited a fieri facias against William B. Alexander and Richard B. Alexander, but was levied on the property of William B. Alexander only. The bond was executed by William B. Alexander, and his sureties. The notice of the motion to award execution on this bond, was addressed to the obligors, and imported that the motion was to award execution on their forthcoming bond, bearing date, etc., and taking by virtue of a writ of fieri facias, issued, etc., "in my name, against William B. Alexander, etc." On the motion, the forthcoming bond, and the execution on which it was taken, were shown to the court; and the proceedings were regular in all respects, except that the notice stated the bond to be taken by virtue of a writ or fieri facias, issued against William B. Alexander, whereas it was in fact issued against William B. Alexander and Richard B. Alexander. It was admitted that this was the execution on which the forthcoming bond was taken, and the only execution in which the said William B. Alexander was a party. The counsel for the defendants took exceptions to the notice, but the court gave judgment on the motion; which judgment is brought before this court by a writ of error. The Act of Assembly prescribes, that the forthcoming bond shall recite the material parts of the execution on which it is taken, but gives no other direction respecting the notice, than After judgment has been rendered, an execution issued thereon and levied, the property restored to the debtor, on his bond *to [*685 produce it on the day of sale, and his failure to do so, we do not think that nice and technical objections to the notice, where every purpose of substantial justice is effected, ought to be favored. The law only requires notice, and where the notice is sufficiently explicit, to render mistake impossible, we think it justifies the award of execution. The judgment is affirmed with costs and damages at the rate of six per centum per annum. *RICHARD BIDDLE, Administrator [*686 Etc., of John Wilkins, V. JAMES C. WILKINS. trators. The plaintiff, as administrator of W. had brought a suit in the District Court of the United States for the Western District of Pennsylvania, and re covered a judgment; and upon this judgment, he instituted a suit in the District Court of the United States, of the State of Mississippi, against the defendant in the original suit. The defendant pleaded, that, by the Orphans' Court of Adams county, in the State of Mississippi, where the defendant resided, he had been appointed the administrator of W. and had continued to act in that capacity. Held, that the debt due upon the judgment obtained in Pennsylvania, by the plaintiff, as administrator of W. was due to him in his personal capacity, and it was immaterial whether the defendant was or was not administrator of W. in the State of Mississippi. That would not, in any manner, affect the rights of the plaintiff; and the plea tenders an immaterial issue, and is bad on demurrer. [691] Where the court in which judgment is rendered has not jurisdiction over the subject-matter of the suit, or where the judgment upon which suit is brought is absolutely void, this may be pleaded in bar; or may, in some cases, be given in evidence, under the general issue, in an action brought upon the judgment. [691] The general rule is, that there can be no averment in pleading against the validity of a record, though there may be against its operation; and it be pleaded in such case to a suit on a judgment is upon this ground that no matter of defense can which existed anterior to the judgment. [692] It has become a settled practice in declaring in an action upon a judgment, not, as formerly, to set out in the declaration the whole of the proceedings in the original suit, but only to allege, generally, that the plaintiff, by the consideration and judgment of that court, recovered the sum mentioned therein, the original cause of ac tion having passed in rem judicatam. [692] In an action upon a judgment recovered in favor | obtained, and is wholly independent of the of an administrator, the plaintiff is not bound to letter of administration. 9 Cranch, 151. make a profert of the letters of administration. That it is not necessary in actions upon such judgments, that the plaintiff name himself as administrator, follows, from his not being bound to make profert of the letters of administration; and when he does so name himself, it may be rejected as surplusage. [692] After judgment recovered in a suit by an administrator, the debt is due to the plaintiff in his personal capacity, and he may declare that the debt is due to himself. [693] ERRO RROR to the District Court of the United States for the Mississippi District. This was an action of debt brought in the court below, upon a judgment obtained by the plaintiff as administrator against the defendant, in the District Court of the United States 687*] for the Western District of Pennsylvania. The declaration was in the common form, averring the recovery by plaintiff as administrator, etc. The defendant pleaded three pleas in bar. 1. Ne unques administrator. 2. That in January, 1817, in the Orphans' Court of the county of Adams, in the State of Mississippi, the defendant was duly appointed sole administrator, and has continued to act in that capacity. 3. That the judgment was obtained per fraudem. The plaintiff replied to the third plea, on which issue was joined; and demurred specially to the first and second, assigning as causes of demurrer. 1. The said pleas set up matter which, if true, existed anterior to the judgment on which the suit was brought; and might have been urged, if effectual at all, against the original recovery. 2. The said matters should have been pleaded in abatement, and not in bar. 3. They contain averments against the record. 4. That the matters therein contained are immaterial, and could not be set up after judgment, to avoid its effect, in the State from which the record came. 5. They are in other respects uncertain, informal, and insufficient. Joinder in demurrer. The judgment of the District Court was in favor of the defendant, sustaining both pleas as sufficient. Mr. Coxe, for the plaintiff in error, contended: 1. The first plea is clearly defective. The plaintiff, in his representative character, had sued in the State of Pennsylvania, and recovered a judgment. In this subsequent action brought upon that judgment, the demand is a personal one. He need not name himself administrator, but may sue and recover in his own name. L. Ray. 1215; Doug. 4; 2 T. R. 126; 2 Phil. on Ev. 290. He need not make profert of the letters of administration, and in this case no such profert is in fact made. Even in action for an escape out of execution, on a judgment obtained as administrator, he need not style himself administrator, nor make profert. Hobart, 38. The judgment obtained in the District Court of Pennsylvania is conclusive evidence of the representative character of the plain- [*688 tiff, as well as of the amount of the debt. At common law, in action of debt on the judgment, or in scire facias, the defendant can plead nothing which existed anterior to the original judgment, or might have been pleaded in bar to the original recovery. 1 Chit. on Pl. 350; 8 Johns. 77; 2 L. Ray. 853; Cro. Eliz. 283; 6 Com. Dig. 306-7; Tit. Plead. 2 D. 1. A judgment obtained in one of the courts of the Union, has the same validity in other federal courts, as a judgment in a State Court has at common law, within the same jurisdiction, or as it possesses under the Constitution and laws of the United States, in a sister State. Montford v. Hunt, 3 Wash. C. C. Rep. 28; Bryant v. Hunter, et al. Ib. 48. The true test by which the validity of the plea is to be settled, is to ascertain whether it would have been held good in an action brought on the judgment, in the same court where the judgment was had. The cases already cited are decisive of that question. 2. The second plea is open to the same objections which exist against the first, and is otherwise informal and defective. It is argumentative; the mere fact that he was appointed administrator of James C. Wilkins by the Orphans' Court in Adams county, furnishes no exemption from suit. It leaves the whole substance of the defense set up to be made out by inference and argument, to wit, that plaintiff was not such administrator; which, however, is only thus inferentially denied. This, if substantially a defense, should have been pleaded to the original action; and therefore cannot avail the party in the present stage of the proceedings. Even if treated now as a plea to the original demand, it is essentially defective, inasmuch as it does not aver that the defendant had obtained letters of administration prior to the institution of the suit in Pennsylvania. It would be a monstrous doctrine to introduce, that a party after a suit has been instituted against him in one jurisdiction, may defeat all the beneficial results of a judg ment, by obtaining letters of administration in another State. 3. The first plea, which in terms traverses the fact that plaintiff is administrator, and the second, which argumentatively rests upon the same ground, are both bad as plea in bar. In the case of Childless v. Emory, et al. 8 Wheat. 642, this court recognized the doctrine that the objection that plaintiffs were not executors, must be taken advantage of by plea in abatement. Mr. Baldwin and Mr. Jones, for defendant. It will be admitted, that the first pleas is defective, and no effort will be made to sustain the judgment of the District Court in reference to that. In such cases, if he do sue in the second action in his representative character, and so designate himself, it will be held mere surplusage, and can in no degree vary the relative The second plea is, however, considered as rights of the parties. 1 Ver. 119; 16 Mass. furnishing a valid defense, and its [689 71; Ib. 533. It would be a bad plea, that plain-character and effects have been wholly misaptiff had not been appointed administrator in the State where the second action is brought, 16 Mass. 533, for in such case, his right to sue is derived from the judgment which he has prehended by the adverse counsel. The demurrer admits that defendant was sole administrator of Wilkins, from 1817 till the institution of this suit. Under the testamentary sys tem of Mississippi, where he resided, a debt due | to the deceased is assets in the hands of the administrator, and is included in the inventory as so much money. The plaintiff sued as administrator, and defendant was at the time administrator within the jurisdiction in which the action was instituted. Every cause of action existing there, was necessarily embraced in the powers of the party, who was alone recognized there as the personal representative of the deceased. He was bound there to account for it-and to distribute it. He was prohibited by law from sending the assets out of the State. He could not legally pay any debt without the sanction of the court. That which he is prohibited from doing directly, he will not be compelled to do indirectly. If sued by creditors, and distributees, upon his official bond, he must be responsible to them for the whole amount of the inventory; and he cannot be discharged by showing payment to plaintiff. There is no such thing as an auxiliary administration. 9 Mass. 355. Each administrator is independent of the author; each derives his power from a competent authority, and each is independent of the other within his own sphere. The residence of the deceased may determine the rule of distribution, and the relative rights of those entitled to the estate; but the concession that final distribution is to be made according to the law of Pennsylvania, though the record is wholly silent as to the place of his residence, leaves the question before the court entirely open. But the courts in Pennsylvania have no jurisdiction over the defendant. He derives is power from the Mississippi court. To it, and to it alone is he responsible. He cannot be cited to account, or to pay over to creditors, or distributees there; all this is to be done in Mississippi. This debt, therefore, which the defendant is answerable for in his own State, and in the manner prescribed by the local law, cannot be assets in the hand of the Pennsylvania administrator. The objection of the plaintiff that these matters existed anterior to the first judgment, and should have been pleaded in bar to the first action, is inapplicable. It is admitted that the record is conclusive upon all the matters which the judgment professes to decide. But if the Pennsylvania court had no cognizance of the subject-matter; if it belonged exclusively to another tribunal; if the alleged debt or claim 690*] was exclusively *within the jurisdiction of the Orphans' Court of Mississippi, or if defendant acted in such a capacity that no court of common law jurisdiction could decide between the parties upon the subjectmatter of controversy, then the question presented is one of jurisdiction, and it is well settled that a court, when called upon to enforce the judgment of another tribunal, may examine into and decide upon the question of jurisdiction. 4 Cranch, 269. The District Court of Pennsylvania has admiralty jurisdiction; if this suit was brought on an admiralty decree, or on a stipulation, or on a bond to the marshal, and it should appear on the record that the admiralty had no jurisdiction over the original cause of action set forth in the libel, the objection might be urged In anywhere and at any time. The whole pro- It is said these matters should have been pleaded in abatement, and not in bar. Pleas in abatement are such as go to the place where suit is brought to any personal privilege of defendant, or to the form or species of action. If the party fails to plead in abatement, it is a submission to the process, and admits the jurisdiction, so far as that he is rightfully before the court. But if the plaintiff cannot sue anywhere, if his cause of action is not cognizable in the court where he sues, even express consent cannot give jurisdiction. The objection is fatal, and wherever it is shown to exist. Mr. Justice Thompson delivered the opinion of the court: The case comes up from the District Court of the United States for the Mississippi District, upon a writ of error. The action in the court below was founded upon a judgment obtained in the District Court of the United States for the Western District of Pennsylvania, in the term of October, in the year 1823, for the sum of $32,957.34. The declaration is in the usual form of an action of debt on a judgment. The defendant pleads in bar: 1. That the plaintiff is not, and never was, administrator of John Wilkins, deceased. 2. That at the January term, in the year 1817, of the Orphans' Court for the county of Adams and State (then territory) of Mississippi, he, the defendant, was duly appointed sole administrator of John Wilkins, deceased, and entered into bond with security, and took the oath prescribed in such case, according to the statute *in such case made and provided; and [*691 that he took upon himself the duty and office of administrator, and has continued to act as such administrator ever since. 3. That the judgment in the declaration mentioned was obtained by fraud. To the two first pleas a special demurrer was interposed, and issue to the contrary taken upon the third, and judgment rendered for the defendant upon the demurrer; to reverse which the present writ of error has been brought. The first plea of ne unques administrator has been abandoned as altogether untenable; and the counsel on the part of the defendant in error have rested their argument entirely on the validity of the second plea; and have treated this as a plea in bar to the jurisdiction of the court, in which the judgment was rendered. It is a little difficult to discover what is the true character of this plea. It can, in substance, amount to nothing more than an allegation that the plaintiff was not the lawful administrator of John Wilkins; and in that respect is but a repetition of the same matter set up in the first plea, and that, too, in a more exceptionable form. For, the conclusion is drawn argumentatively from the fact set up in the plea, that he, the defendant, was duly appointed solę administrator of John Wilkins, in |