
    William H. Browning et al., Executors of Daniel Harvie, vs. Albert Y. Watkins et al.
    A bill of interpleader cannot be maintained by any person -who does not admit a right in two claimants, and also show two claimants in existence capable of interpleading ; in every case of interpleader, the case tendered ought to be of such a character that the whole of the rights claimed by the defendants may be properly determined by litigation between them, and the plaintiff be under liability to neither beyond that which arises to the title of the thing in contest.
    Where there is no general personal representative, a special administration limited to the subject of the suit is generally required in equity.
    H. brought suit against F. on a note ; F. being doubtful of the ownership of the note, whether it belonged to H., or W., deceased, filed his bill of inter-pleader against H. and the heirs of W. (there being no administration on W.’s estate,) and brought the money into court. H. and the heirs of W. answered, the former insisting also on a demurrer; the vice-chancellor, on the'proof, awarded the money to W.’s heirs : Held, that it was not a case for a bill of interpleader ; the heirs were not in a condition to assert a claim against H., and therefore there were not two claimants of the thing in controversy; administration ought to have been taken out on W.’s estate, and his administrator conducted the litigation in that behalf.
    On appeal from the decree of the district chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    The trustees of the Franklin Female Academy state in their bill, that Daniel Harvie, in his lifetime, sued them upon their writing obligatory for $740, payable to M. M. Jordan, to the April term, 1845, of the Lowndes circuit court; that Harvie died; and his executors, William W. Browning and Robert Howard, had revived the suit. That Albert G. Watkins and others, the heirs at law of John D. Watkins, deceased, claim title to the bond, and threatened to sue upon it. Watkins died in Texas, and Louis B. Taliaferro administered in that state; but no administration had been taken out in this. They expressed their willingness to pay, if they knew whom to pay to, and offered to bring the money into court,' and prayed that the executors of Harvie and the heirs of Watkins might interplead.
    The heirs of Watkins and the executors of Harvie answered the bill of interpleader. The former asserting an absolute right to the note, the latter not asserting positively a right in Harvie, insist on the benefit of a demurrer to the bill of interpleader, in their answer.
    It is not necessary, in view of the decision of this court, to notice further the pleadings and proof in the court below, except to state that it was in proof that the bill single in controversy had been inventoried in Texas as portion of the estate of Watkins. The complainants brought the money into court, and the court decreed it to Watkins’s heirs.
    The executors of Harvie appealed.
    
      William P. and John F. Jack, for appellants.
    1. Property remaining undisposed of at the death of a person cannot be claimed by the heirs except through the medium of an administrator; and in such sase it is the duty of the court to appoint one, as it is indispensably necessary, to give title to the distributees. North on Probates, 112, n. 4.
    2. If this claim belonged to the administrator in Texas, being there inventoried, the rights of the distributees of Watkins, whatever they may be, must be enforced and settled in the proper tribunal in Texas.
    3. At common law the administrator could sell, transfer, or give away the assets of his administration at pleasure, being responsible therefor to the heirs, (North on Probates, 86, n. 1) ; and we know of nothing in the laws of Taxas interdicting this right; it would be strange if in Texas the distributees would not have to claim through the administrator.
    4. In this state an administrator may lawfully sell, transfer, and negotiate the bills receivable, for the benefit of the estate, or in payment of claims against it; and it is not shown that this note was not so transferred in Texas.
    5. The heirs of Watkins, we think, cannot recover the money in this proceeding; there is no title in them; if the administrator in Texas has wrongfully parted with the claim belonging to the estate, he must account for it there; the heirs of Watkins must seek their redress there. At all events, they cannot here maintain a suit for what appertains to the ‘personal administration.
    
      Boylcin and Crusoe, for defendants in error.
    1. The proof shows that the bond was the property of Watkins’s estate in Texas, and inventoried there as such; and if the court had jurisdiction of the case as to Watkins’s heirs, the decree of the chancellor was right.
    2. There was no administrator in this state; they alone represented the intestate; the money is coming to them, even if it passes through the hands of an administrator, and they ought not to be sent away to Texas, to enforce their rights there against the administrator and his sureties, when the decree rendered here has done justice to all the parties. Fane’s Heirs v. Graves and Wife, 4 S, & M. 707.
    3. If Watkins’s estate is in debt, that is matter of defence for the-defendant to show in avoidance of the decree.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

Suit was instituted by Harvie, on whose estate the plaintiffs are executors, against the Trustees of Franklin Academy, on a writing obligatory. The trustees being doubtful as to the ownership of the instrument, filed a bill of interpleader against Har-vie’s executors, and the heirs of J. D. Watkins, and paid the money into court. Watkins died in Texas, and there was no administration here on his estate. It is alleged in the bill that Harvie had received the writing obligatory from Watkins’s administrator, in Texas, for collection only; notwithstanding which he had brought suit in the name of the payee for his own use.

The parties answered, Harvie’s executors insisting on the benefit of a demurrer. They do not positively assert a right in Harvie, whilst a right in Watkins’s estate is positively asserted by his heirs: and on the proof, the vice-chancellor decreed in favor of the heirs.

The decree is probably sufficiently sustained by the proof, so far as the title to the note is involved; but the important question arises, Can the parties brought in by the bill litigate this matter? Watkins was the owner; but are the heirs clothed with such right as to enable them to maintain a suit in chancery under the circumstances? The case of Farve’s Heirs v. Graves and Wife, (4 S. & M.) is relied on; but it is distinguishable from the present case in many particulars. Farve had died in New Orleans in 1813. His widow, under an irregular or pretended administration, had taken possession of all his property in this state, which consisted of a large estate, much of which had been wasted. She had, with her husband Graves, continued to hold the property for many years, and to receive the profits. She was of course entitled to part of it; besides which, the will contained a provision in her favor. She, it would seem, claimed the whole, or at least had refused to account to the heirs. She had sold part of the property, and converted the proceeds to her own use. Her adverse claim, the unsettled condition of the estate, her undivided interest, and the necessarily complicated state of accounts, which had been running on for upwards of twenty years, required the powers of a court of chancery to enable the heirs to obtain justice. But in this case the heirs assert a right to have a decree in their favor for the amount of a single debt due their ancestor. They can claim only as distributees, and not as the legal representative of Watkins. Where there is no general personal representative, a special administration, limited to the subject of the suit, is generally required. Mitf. Plead. 177, 178.

A'bill of interpleader must show that both defendants claim a right, or one or both may demur. Mitf. Plead. 198. One, it is true, may be a legal, and the other an equitable right. An equitable right is such right as may be asserted and maintained in a court of equity. Ordinarily the heirs of a deceased person cannot in equity recover the debts due the deceased. That rule would entirely dispense with administration. In affording relief on a bill of interpleader, where the rights are legal, equity acknowledges and acts upon the foundation of the legal right, and gives to the parties that measure of justice which they ought severally to attain, if, by circuity of action, they were to proceed at law. Jeremy’s Eq. 346. The heirs could not proceed at law or in equity. A party cannot litigate by interplead-ing where the court can make no decree against him, or where the decree would not finally settle the right. A decree against these heirs would not bind an administrator. The case tendered by a bill of interpleader ought to be, that the whole of the rights claimed by the defendants may be properly determined by litigation between them, and that the plaintiff is not under liability to either beyond that which arises to the title of the thing in contest. 2 Story’s Eq. 160, n. 2. A bill of interpleader, says Judge Story, cannot be maintained by any person who does not admit a right in two claimants, and does not also show two claimants in existence capable of interpleading. 2 Story’s Eq. 164. The true ground on which the plaintiff comes into equity is, that he may not be vexed by two suits against him, pending at the same time. Id. 148. This case does not present two persons capable of interpleading, nor could they maintain two suits at the same time. As a proper case is not made out for a bill of interpleader, Harvie’s executors must have the benefit of a demurrer. We cannot decree against them without decreeing in favor of the other party, which cannot be done. If administration should be taken out, the administrator may still have a remedy, as the title seems to be in Watkins’s estate.

Decree reversed, and bill dismissed.  