
    Philena B. Fisher, Administratrix, &c., et al., Respondents, v. George Hubbell, Executor, et al., Appellants.
    (General Term, Fourth Department,
    June, 1873.)
    Under particular circumstances a creditor of an estate of a deceased person may maintain an action to collect his debt from a debtor to the estate.
    As in case of collusion between debtor and personal representative, the latter’s insolvency, partnership in an indebted firm, or refusal to sue.
    So where the executor, whose estate is indebted, is administrator with the will annexed of the creditor estate, it is an exception to the general rule that the creditor must recover through the personal representative.
    Legatees claiming an equitable conversion of real estate under the will of another decedent in favor of their testator, or a charge of their legacies, by their testator, upon land devised to him by such will, the personal representative of each estate being the same, may bring an action for construction of the wills, an accounting, and payment of their legacies, and may join in one suit as creditors having claims of equal degree and under like circumstances.
    
      The action seeking to charge the equitable personal estate, the personal representative of the estate to be charged must be a party to it, and in his representative character, it is not sufficient to make him a party, as the representative of the estate through which the legatees claim.
    Appeal from an interlocutory order made at the Erie County Special Term, determining the rights of the parties in an equity case.
    
      U. It. Selden, for the appellant.
    
      W. W. Rowley & Del. Crittenden, for the respondent.
    Present—Mullin, P. J., Taloott and E. D. Smith, JJ.
   By the Court—

Talcott, J.

Albert Banta, a resident of the county of Ontario, died there prior to February 10, 1864, leaving him surviving, Sarah Banta, his widow, and his two sons and heirs-at-law, Charles Edward Banta and Stanley A. Banta. He also left a last will, whereby he appointed the said Sarah Banta, his widow, sole executrix. Charles Edward Banta, one of the sons of said Albert, died in September, 1864, leaving a last will whereby the defendant, George Hub-bell, was appointed his sole executor. Mrs. Sarah Banta proceeded with the execution .of the will of Albert Banta until October, 1870, when she died, and thereupon the defendant, George Hubbell, was duly appointed administrator de bonis non of Albert Banta, with the will annexed.

The plaintiffs are legatees of Charles Edward,Banta, the son of Albert Banta, and they have commenced this suit upon the ground that as such legatees they are creditors of the estate of Charles Edward Banta, and they claim:

First. That the estate of Albert Banta is indebted to the estate of Charles Edward Banta, inasmuch, as they say, that by the true construction of the will of Albert Banta, his real estate was, in equity, converted into personalty as of the time of the testator’s death, and, therefore, that the share or proportion of that estate to which, under the will of Albert Banta, his deceased son, Charles Edward Banta, was entitled, was personal property due and which ought to be paid over to the said Hubhell, as the executor of said Charles Edward, to an extent sufficient to satisfy the balance due to said legatees.

Second. The plaintiffs claim that, if by the true construction of the will of Albert Banta, the real estate was not converted into personalty, but that Charles Edward took his proportion of the same as realty, under the provisions of the will, then that the legacies to which the plaintiffs are entitled under the will of Charles Edward, were, by the true construction of the latter will, charged upon the real estate of the said Charles Edward, are to be paid out of the same, as against Stanley A. Banta, the living son of Albert Banta, and the residuary devisee and legatee under the will of Charles Edward Banta. The case, it will be seen, thus involves the construction of the two wills in question. The justice who tried the cause determined both the propositions above stated in favor of the, plaintiffs. ■

We think the plaintiffs have a right, under the circumstances, to maintain an action for the general purposes and objects which the plaintiffs seek in this suit. Under particular circumstances, a creditor of an estate of a deceased person may maintain an action to collect his debt from a debtor to the estate. “A person is not properly a party to a suit between whom and the plaintiff there is no proper privity or conimon interest, but his liability, if any, is to another person. This may be illustrated by the common case of a bill brought by a creditor against an executor or administrator for payment of his debt out of the assets. To such a bill a debtor to the estate is not ordinarily a proper party, because his liability is solely to the executor or administrator. But if a special case is made out, such as collusion between him and the executor or administrator, or insolvency of such personal representative, then, and in that case, the debtor may be made a party, as a means of uprooting the fraud or of securing the property.” (Story’s Eq. Pl., § 227; Newlan v. Chapman, 1 Vesey Sr., 105; Doran v. Simpson, 4 Vesey, 651; Alsayer v Rowley, 6 Vesey, 748.)

"Where the executor is a partner in a firm which is indebted to the estate, in such a case the debtor may be made a party to the suit of the creditor for an account of the assets and for payment of his debt. (Gedge v. Trail, 1 Russ. & M., 281.) So where the personal representative of the testator refuses to sue, any person beneficially interested in the estate, as legatee, has a right to institute a suit respecting such assets. (Wilson v. Moore, 1 Mylne & Keene, 127 and 142.) Here the executor of Charles Edward Banta, whose duty it is to see to the collection of the assets of the estate of which he is executor and to pay over the legacies, is also the administrator die bonis non of the estate which is claimed to be the debtor of Charles Edward Banta’s estate. He cannot, as executor of Charles Edward, sue himself as administrator of Albert.

(Trustees, &c., &c. v. Stewart, 27 Barb., 553.) So that without the necessity of imputing any fraudulent collusion or neglect, he stands in a position which is equivalent, in its effect, to a fraudulent collusion, or a refusal to sue, and we think it is a case which falls within the reason of the exceptions recognized in the cases cited.

If the plaintiffs can maintain the action at all, it seems to be clear that they may call for the construction of the will of Albert Banta, since such a construction is necessary to the determination of the question whether the estate of Albert Banta is indebted to the estate of Charles Edward.

It seems to be clear, that if the plaintiffs may maintain the action at all, they may join in the same, as creditors having claims of equal degree and under like circumstances. (Barbour on Parties, 385; Story’s Eq. Jur., §§ 532, 538; Tentilhon v. Moffat, 1 Ed. Ch. R., 451.)

But that the personal representative of the estate of Albert Banta is a necessary party to the suit, there can be no doubt. If the estate of Albert Banta was, by his will, converted out and out into personalty, the personal representative is the person to account, and an account must be had between the two estates.

Consequently, the decretal order which the justice at Special Term has made, requires the defendant Hubbell, to render an account as administrator of the estate of Albert Banta. Without, therefore, the presence of the personal representative of Albert Banta as a party, the suit is wholly fruitless and nugatory. (Story’s Eq. PL, § 102.)

Though George Hubbell is made a party defendant to the suit, it is solely and distinctly as the executor of Charles Edward Banta, and as such only has he appeared and answered. To bind the estate of a deceased party or to authorize any decree for an account against the same, it is not sufficient that the party who is the representative be a party to the suit, but he must be made a party distinctly in his representative character. This suit, therefore, is wholly defective, and for want of the presence of the personal representative of Albert Banta, cannot proceed to a decree against his estate, nor is any part of the order appealed from or any determination therein contained, binding upon such estate.

The order appealed from must, therefore, be reversed, and the cause remanded to the Special Term, with leave to the plaintiffs to apply there for permission to amend their complaint by bringing in George Hubbell as administrator de bonis non, with the will annexed, of Albert Banta, and also for permission to amend the complaint as to such other defects of form as they may be advised, and upon such terms as in the discretion of the Special Term may be deemed just. As this defect of parties was apparent on the face of the complaint, and as no demurrer was interposed, and apparently no suggestion of the defect was made until the argument of the appeal, neither party is to have costs of the appeal. The order will be:

Order appealed from reversed; action remanded to the Special Term, with leave to the plaintiffs to apply there for permission to amend their complaint by bringing in as a party defendant George Hubbell, as administrator of the estate of Albert Banta, and to amend the complaint in regard to such other defects of form as they shall be advised, upon such terms as may be deemed just.

Ordered accordingly.  