
    *Moring v. Lucas, &c.
    [April, 1795.]
    Executors and Administrators — Suits for Settlement by Heir, Legatee or Distributee — Parties.—The heir, legatee, or distributee, must either bring the executor or administrator of the decedent before the court, or administer himself ; without which, he cannot sustain a bill for an account of the eflects of the deceased : for it is not suiiicient to allege that the rights oi his predecessor are all united in him, as there may be outstanding claims to adjust.
    John Moring, in 1793, filed a bill in the high court of chancery, stating himself to be eldest son and heir at law to William Moring, who was eldest son and heir at law to William Moring, son and devisee of Chistopher Moring, the elder; and that the said Christopher Moring, on the 27th of December, 1751, made his will; and, thereby, among other things, bequeathed as follows, “I give to my sons Christopher Moring and William Mor-ing all the rest of my estate, that I have not forenamed in this will, to them and their heirs forever, to be equally divided between my two sons Christopher and William Mor-ing ; ” of which will, he appointed the said Christopher Moring, the younger, sole executor ; who died, without having rendered an account of his administration, and without any partition of the said devised property. That John Lucas and John Jarrett, who married the two daughters of the said Christopher Moring, took administration upon his estate. That the plaintiff’s grandfather, the said William Moring, died after the death of the said Christopher Moring, leaving William Moring, his eldest son and heir at law ; who died, leaving the plaintiff his eldest son and heir at law; and thereby that a right to a moiety of the said devised property has descended to the plaintiff. The bill, therefore, makes Lucas and Jarret the administrators of Christopher Moring, the younger, defendants, and prays a decree for partition accordingly, with general relief.
    The defendant, Jarret, pleaded 1. That he and the said John Lucas deceased, were administrators of Christopher Moring, the younger, and not executor of Christopher Moring, *the elder; and that he never had any of the effects of the said Christopher, the elder, in his possession. 2. The act of limitations. He likewise de-marred to the bill, because neither the executors nor administrators of William Moring, the elder, or of his son William Moring, the younger, were parties to the suit. He also answered, admitting the will of Christopher Moring, the elder; but says he does not know whether Christopher Moring, the executor, rendered any account of his administration. Gives an account of the devised property : and believes there was a fair division made of it among those entitled to it.
    Sarah Lucas, the administratrix of John Lucas, filed similar pleas, and alike demurrer and answered.
    Sundry depositions were taken ; and the court of chancery dismissed the bill upon a hearing, because the plaintiff “hath not shewn himself entitled to the estate and profits by him claimed, nor, if he were entitled, the defendants to be properly chargeable therewith.” The plaintiff appealed to the court of appeals.
    Tor the appellant, it was said, that the whole interest of his predecessors had centered in him ; and as it did not appear that any of them owed debts, so as to make an administration to either of them necessary, there was nothing to impede the plaintiff’s recovery immediately, without going through unnecessary forms, which would only create delay and expense, and could be attended with no benefit. That there was no necessity for an administration, de bonis non, upon the estate of Christopher Moring, the elder, as it was not shewn that he owed any debts, and it ought to be presumed, after so great a lapse of time, that none existed.
    Tor the appellees, it was said, that the heir or legatee has no right to immediate possession of the devised or undevised subject, until there is an executor or administrator to the deceased; for the latter may owe debts, or there may be claims to adjust. That this objection applies as well to the *unadministered estate of Christopher Moring, the elder, as to that of the immediate, and intermediate, predecessors of the plaintiff; who, if he wishes to discuss the subject, must either take administration himself, or procure some other person to do it.
    Cur. adv. vult.
    
      
      Executors —Administrators—Suits for Settlement —Parties.—Tbe next of bin and distributees may maintain a suit to settle the decedent’s estate but they can have no decree for distribution, unless the personal representative be made a party. Robertson v. Gillenwaters, 85 Va. 118, 7 S. E. Rep. 371, citing Samuel v. Marshall, 3 Leigh 567; Frazier v. Frazier, 2 Leigh 643 : Moring v. Lucas, 4 Call 577 ; Hansford v. Elliott, 9 Leigh 95, which latter case cited the principal case for the same proposition. See mono-graphic note on "Executors and Administrators.’’ appended to Rosser v. Depriest, 5 Gratt. 6.
    
   LYONS, Judge,

delivered the resolution of the court as follows :

The point debated was, whether there were proper parties to the cause, so as to enable the appellant, if he had any right, to assert it: and the court discovers no cause to find fault with the decision of the chancellor. Tor the appellant represents none of his predecessors, in the legal acceptation of the word, when a distribution of the personal estate of the decedent is called for, as he is neither executor nor administrator of either of them ; and some, or all of them may owe debts, or may have devised their property into other directions, and not left it to the distribution of the law. Tor aught that appears to the contrary, there may be executors or administrators, to some, or other of them, who ought to have an opportunity of being heard. Until this is done, the plaintiff shews no title; for even the administrator of Christopher Moring, the elder, may be disposed to contest the legacy gand, without his consent, the plaintiff cannot be entitled to the property, unless, in the opinion of the court, the consent is unreasonably withheld. Besides, the executors or administrators of the predecessors of the plaintiff may have solid objections to make, on the score of creditors, and unadjusted claims, which ought to be discussed and finally disposed of, before the plaintiff, if he has any title, takes possession. As, therefore, the plaintiff has left his case imperfect; and, if he has title, shews no right to present possession, the decree is unexceptionable.

Decree affirmed.  