
    WILLIAM CLARK vs. MARVEL M. EDNEY & AL.
    Where a plaintiff in a petition, claims to be an assignee by a written inurnment, whether he is so or not, is a question of law for the Court, not oS fact to be submitted to a jury.
    Where a paper under which a plaintiff in a petition claims to be an assignee does not on its face purport to be an assignment, but only an order for money, it is necessary that the alleged assignor or his personal representative should be a party to the petition, either plaintiff or defendant.
    On a petition against administrators for a distributive share of an estate, all persons entitled to distribution should be made parties.
    The cases of Polk v. Gallant, 2 Dev. and Bat. Eq. 395. Thompson v. McDonald, 2 Dev. and Bat. Eq. 463. Hobbs v. Craige, I Ired. 339, and Htwson v. McKenzie, 1 Dev. Eq. 463, cited and approved.
    Appeal from the Superior Court of Law of Henderson County, at the Fall Term, 1845, his Honor Judge Bailey presiding.
    The petition sets forth, that Jane M. Townsend died intestaté in the year leaving a considerable personal estate ; that administration was granted to the defendants, who took into their hands all the personal property ; that James M. Townsend was one of the children of Jane M., and that he, for a valuable consideration, assigned to the petitioner all his interest as one of her next of Ida; that more than two years had elapsed, after the qualification of the defendants, and that the petitioner had demanded of the defendants a settlement of the estate and a payment to him of the distributive share due to James M. Townsend, who is dead. He prays that the defendants may be decreed to account with and pay over to him what is due, as such assignee of James M. Townsend, and prays process against the said defendants.
    The defendants file a joint answer, admitting the death of Jane M. Townsend, and that they have been duly appointed her administrators, and have taken into their hands her personal property, to the amount set forth in. their inventories. They deny that the petitioner is the assignee of James M. Townsend, who is admitted to be one of the next of kin of Jane, and entitled to a distributive share ; and claim in their answer that the other children of Mrs. Townsend should be made parties. The assignment to Clark, under which he claims the distributive share of James M. Townsend, as set forth in his petition is as follows : “ Mr. Marvell M. Edney and R. R Townsend, “ please to settle with, and pay over to, William Clark, “ all the amount in your hands, belonging to me, and “ this shall be your receipt for the same.” This paper was presented to the defendants by a person sent by the petitioner, and they refused to take it up or to recognise it, as addressed to them in their representative characters, or as authorising them to pay over to the petitioner the distributive share of James M. Townsend. At the time of filing this petition, James M. Townsend was dea,d. The petition was filed in the Court of Pleas and Quarter Sessions of Henderson County, and, upon the coming in of the answer, was dismissed. TTpon appeal to the Superior Court, replication having been taken, issues were made up to be tried between the parties. At the Fall term, 1845, issues were made up and tried. The issues were — was William Clark the proper assignee of James M. Townsend; 2nd, has the petitioner called on the defendants, as administrators, to pay his claim. These issues were tried by the jury and found for the plaintiff, whereupon the Court decreed that the defendants should pay the plaintiff the sum of $33 14, and the defendants appealed.
    No Counsel appeared in this Court for either- party.
   Nash, J.

Many orders and decrees are made in the hurry of business, on the circuits, which will not bear a strict scrutiny, and which the Judge himself would not mahe, if he had time for the least reflection. This case furnishes an instance. The presiding Judge submits to the jury the question, whether the petitioner was the as-signee of James M. Townsend’s distributive share. This was a question of law tobe decided by him. After the j ury had responded to the issues submitted to them, without any reference to the Master to ascertain the situation of the assets, and the amount due for the distributive share of James M. Townsend, the Court decrees that the defendants should pay the plaintiff a certain sum. We think this was erroneous. But the proceedings are in themselves defective. At the filing of the petition, James M. Townsend was dead. His representative is not made a party, nor are the other children of Mrs. Townsend, nor is any reason given why they are not. The petitioner claims to be the assignee of James M. Townsend. The paper, which he alleges contains the assignment, does not purport to be an express assignment of the drawer’s distributive share — there are no words of conveyance in it —it is not addressed to the defendants in their representative character; it is but an order for the payment of what money of his, might be in their hands. It is true, an order by one of the next of kin, upon the administrator, such as the one in this case, may, under circumstances, be held to be an equitable assignment of his distributive share. But when it is, as here, not upon its face an assignment, the person claiming under it, in order to recover, must make the alleged assignor a party in order to ascertain its character. Polk v. Gallant, 2 Dev. and Bat. Eq. 395. Thompson v. McDonald, Ibid. 403. But it was equally necessary to make the other children of Mrs. Townse'nd parties. It is ever the aim of a Court of Equity to do complete justice, by deciding upon and settling the rights of all parties interested in the subject of the suit, in order to prevent future litigation, and to make the performance of the orders of the Court perfectly safe to those, who are compelled to obey them. Calocrt on parties, in Eq. 3. All persons, therefore, who are interested in the question, or concerned in the demand, ought to be made parties. Ibid. p. 10. The other dis-tributees of Mrs. Townsend are directly interested in the question and concerned in the demand. The fund sought to be divided is a joint one, in which all the next of kin have an interest. The other children ought to have been parties, and no reason is assigned why they are not. Hobbs v. Craige, l Ired. 339. Hewson v. McKenzie, 1 Dev Eq. 463. Calvert and parties, in Eq. 3, 10. This objection can as well be taken on the hearing as by plea. The case is before us for final hearing upon an appeal, and we must decide it as it is.

Per Curiam. The decree below reversed and the petition dismissed at the costs of the plaintiff.  