¶1The decretal order of the chancellor recites that affidavits were dispensed with, on the motion made in this cause to compel the complainants to elect whether they would proceed in chancery, or prosecute the suits at law instituted in the circuit court. The motion was submitted on the original papers in this cause, transcripts of the papers in the circuit court suits, and the agreement of counsel, that certain named slaves, mentioned in the pleadings in this suit, are identical with those bearing the same names, which are mentioned in the pleadings in the suits at common law.
¶2The suits at common law are prosecuted in the name of John W. McRae, as administrator de bonis non of Simeon Henderson, deceased; and the complainants in this suit are certain other persons, who alleged that they are the next of kin to the said Simeon Henderson. The name of John W. McRae, as administrator of some of the alleged distributees,appears as one of the complainants ; but the administrator de bonis non is nota complainant in this suit.
¶3We are satisfied that, as this case was presented to the chancellor, there was not enough to show that the suits at law and the bill in chancery were instituted for the same claim or demand; and hence the complainants should not have been put to their election. — Rule 107 of chancery practice, 24 Ala. xxiv; Sterns and Wife, Ex parte 14 Ala. 597; 2 Dan. Ch. Pr. 961; Anon. 1 Vesey, Jr, 91; Ex parte Hilton, 1 Jac. & Walk. 450.
¶4We need not, and do not, announce what would be our opinion, if the record contained evidence that the suits at law were brought at the instance, and for the benefit of *302the. complainants in this suit. The record contains no affidavit, or other evidence, which enables us to assert as a fact that such is the case. This subject was considered by Ch. Walworth, in Soule v. Corning, 11 Paige, 412.
¶5For the error above pointed out, this cause must be reversed.
¶6It is contended for appellees, that the decree pronounced by the chancellor, in dismissing the bill of complainants, should be affirmed, because of repugnancy and uncertainty of averment, apparent on the face of the bill. We cannot perceive that there is any repugnancy. Under each phase of the bill, the complainants are entitled to equal and identical relief.
¶7The question of uncertainty depends on the construction of the nuncupative will. In other words, it depends on the inquiry, whether the pronoun them stands in the place of, and designates the present complainants, or whether the clause of the will, commencing with the words at her death, is void for uncertainty. If it is void, then the averments of this bill clearly show that the complainants are the next of kin, and properly the actors .in this suit. On the other hand, if the bequest is not void for uncertainty, then the simple assertion of their right in the disjunctive, is not enough to avoid or defeat the bill. Whether the bequest is or is not void for uncertainty, is a question which has not been argued ; and we decline, in the form in which the question is presented, to consider it. This question is somewhat considered in 1 Boper on Legacies, 176, et seq.
¶8Without intending to decide any other question than the one first above considered, the decree of the chancellor is reversed, and the cause remanded.