
    WYNN NANCE & AL. vs. MARMADUKE POWELL & AL.
    Legatees, next of kin, and creditors of a deceased person, can only file a bill against a debtor to the deceased or his trustee, by charging collusion between the debtor or trustee and the personal representatives, or some other peculiar circumstances, which give a right to the legatees, next of kin or creditors to bring that suit, which the personal representative might and¡ ought to have brought.
    Collusion is the usual foundation of such a bill, and without it, or some equivalent ground, as the insolvency of the executor or the like, it will not lie.
    The facts, on which the allegation of collusion, &c. is made, ought to be stated in the bill, although the general allegation may be sufficient to prevent a demurrer, and they must be proved on the hearing.
    Legatees, next of kin, and creditors of a deceased person, camiot bring a bill against a debtor to the deceased or his trustee, for the reason, that the executor could not, or that he could not prove the case, if the suit was. brought by himself, but could, as a witness, prove it for the other parties.
    The case of Dameron v. Clay, 2 Dev. Eq. 17, cited and approved.
    Cause removed from the Court of Equity of Columbus County, at the Spring Term 1846.
    The following case appears from the pleadings and' proofs:
    The bill states that Wynn Nance died intestate in 1815, leaving a widow, Dorothy, and four children, namely, Daniel H., Edward W., Betsey, intermarried with James Brown, and Lucy, intermarried with Jesse Foulk t. that the two sons, Daniel H. and Edward W. administered on the estate, and that in 1815 a division of the estate was made by the widow, and the children, who were all of age ; and in the division, several horses and other personal property were allotted to Mrs. Wynn: that in March 1S19, the said Brown and Foulk being impatient to realize something immediately for their expectations from the reversion of what had passed to the widow, or their right as next of kin in the personal estate of the widow, respective!}* sold said expectations to the said Daniel and Edward, that is to say. Brown sold for the price of $450, and Foulk for the price of $500, which was paid to them respectively, and for which they gave several receipts, which are set out in the bill, and are expressed to be “ given to Edward W. Nance and Daniel II. Nance, administrators of the estate of Wynn Nance, deceased,” and to be “in full of all claims of every description against the estate of Wynn Nance, deceased.” The bill tlieri states, that, notwithstanding the form in which the receipts are expressed, the contracts were in fact for any claim Brown and wife and Foulk and wife then had or might have, “ upon the portion of the estate of said Wynn Nance, which had gone into the hands of said Dorothy, with all the increase and profits,” with the exception of a certain piece' of land which belonged to Daniel II. Nance.
    The bill then states that Dorothy, the widow, intermarried with Jethro Robins; that said Jethro subsequently died, leaving the said Dorothy surviving, and that she has since died in 1843, intestate, and leaving some personal estate, and the defendant, M. Powell, administered on it; and that Brown and wife and Foulk and wife now claim distributive shares of the estate as part of her next kin.
    The bill also states, that Edward W. Nance died, having first made a will,'and thereof appointed Moor Linnon the executor, who duly proved it and undertook its executions, and that Daniel H. Nance died intestate, and the same Moor Linnon administered on his estate.
    The bill then states, that certain of the plaintiffs are the children of the testator, Edward Nance, and that the others are the children of Daniel H. Nance; and that the plaintiffs, Mrs. Brown and Mrs. Foulk are the rest of the kin of Dorothy Robins, deceased. The bill is filed against Brown and wife, Foulk and wife, Powell the administrator of Mrs. Robins, and Moor Linnon the executor of Edward W. and administrator of Daniel H. Nance. Besides the matters already set forth, it states that both the . plaintiffs and Linnon had called on Powell to pay to the plaintiffs or Linnon the whole personal estate of Mrs. Robins, formerly Nance, and that, he declined doing so without the consent of Brown and Foulk, and that those persons refuse to give such consent and demand of the administrator to pay them the distributive shares of their wives respectively, that is, to each, one fourth part.
    The bill then states, that Linnon is an indispensable witness to establish the purchase, made by the fathers of the plaintiffs from Brown and Foulk: and that by reason thereof he could not bring a bill in his own name, as he could not give evidence for himself, and therefore the present plaintiffs have sued in their own names, and made the said Linnon one of the defendants, in order that, by leave of the Court, he might be examined against the other defendants.
    The prayer is, that Brown and wife, and Foulk and wife may be compelled to perform their agreements with the fathers of the plaintiffs, “ and relinquish all claim to any of the estate of the said Dorothy Robins, or such portion of the estate of Wynn Nance, deceased, as may' have gone into her hands; and that the defendant, M. - Powell, may account with and pay over to your orators and oratrixes the whole of,the said fund; or that'the said Powell may come to an account with your orator and oratrixes, and with the defendant Brown and Foulk, and thereupon be decreed to pay to the plaintiffs the sums <pf $500 and $450,. received by them, Brown and Foulk on the contract aforesaid, and which, from want of proof and lapse of time, neither the plaintiffs nor the said Linnon, as executor and administrator, as aforesaid, would be able to recover at lawand for general relief.
    The answers of Brown and Foulk admit the execution of the receipts by them respectively ; but they deny that there was any such contract, as alleged in the bill, for the sale of any reversion in the estate allotted to the widow, or of their expectations from her as her next of kin or otherwise: and they aver that the receipts were for sums paid fo them by the administrator, for a surplus of money which remained in their hands, after the pay- x ment of the debts of the father, Wynn Nance, for distribution under the statute. They insist, therefore, that they are entitled to full distributive shares of the estate of Mrs. Robins without any abatement. The administrator Powell denies all knowledge of the contracts alleged in the bill. He states that he is ready to account for the personal estate of his intestate, Mrs. Robins, when properly required; but he insists, that if, under the alleged contracts, Edward W. Nance and Daniel H. Nance became entitled to the shares of the said estate, that would have belonged to Mrs. Brown and Mrs. Foulk, h© is not bound nor at liberty to account therefor to the plaintiffs, but to Moor Linnon as the .executor and administrator of the said Edward W. and Daniel H. He admits that the plaintiffs are the children of those two persons, as stated in the bill, and their next of kin respectively.
    Under an order, the deposition of Moor Linnon was taken, subject to just exceptions. He states, that Daniel H. Nance agreed to give Brown $450 for his right of inheritance to the property then in the hands of Dorothy Nance, widow of Wyrin Nance, deceased, which she re-, ©eived in the division of the estate of her husband, and the witness saw Brown give the receipt, as set forth in the bill, and take the bonds of Nance for the money.
    Another witness states, that he was present at the contract with Brown and Foulk, and wrote their receipts, and that he understood it to be a final settlement, between the administrator of Wynn Nance and Brown and Foulk against all further claims on the estate, and “ to the property that went into the hands of the widow of the deceased.”
    
      Strange, for the plaintiffs.
    
      J. H. Bryan, for the defendants.
   Ruffin, C. J.

There are several objections to the plaintiffs’ case, which are fatal to it. The principal object of the bill is, to set up the alledged agreement of Brown and Foulk, to sell to the fathers of the plaintiffs some interest, it was supposed they had in the property that fell to Mrs. Nance in the distribution of her first husband’s estate ; and to have it specifically executed, or in some way to have a decree for the payment of the sums which were given as the price of that interest. Now, the rule is clear, that a suit against Brown and Foulk, for those purposes ought to be brought by Linnon, the executor of Edward W. Nance, one of the supposed purchasers, and the administrator of Daniel H. Nance, the other of such purchasers. Instead of that, it has been brought by the children of those persons, as being entitled as their next of kin. In the first place the remark occurs, that the bill states that one of those persons, Edward W. Nance, made a will — and that puts an end at once to the rights of his children in this fund, as next of kin, and makes it necessary that they should show a title under the will, if it gives any thing to them. But the bill states no part of the will, except that it appoints Linnon executor, which is certainly insufficient, as the Court cannot decree, upon a presumption that the instrument contains no disposing clause, when it was so easy to stats its provisions in the bill, and produce the will in evidence. Supposing, then, that a bill could be brought in this case by the legatees and children of those purchasers respectively against the Vendors, making the executor and administrator and the purchasers, a defendant; this bill at all events cannot be sustained, because none of the plaintiffs legally represent Edward W. Nance, whose interest must be before us in some way. But if that difficulty was removed, and Edward W. had died intestate as well as Daniel H. Nance, we should hold, that the bill, as it is framed, will not lie. It charges no collusion, either in detail as to its circumstances,.or even generally, between Linnon and the'other defendant. It does not implicate that person, even in the formal charge of combination and confederacy, but restricts that to the other parties, Brown and wife, Foulk and wife, and Powell. Indeed, the bill expressly repels any such imputation against Linnon, by assigning, as the reason why he did not sue and why the plaintiffs did, that Limion’s evidence was indispensable to establish the alleged contract between his testator and intestate and the other parties; and not that the plaintiffs had applied to Linnon to sue, and that, by collusion with the other defendants or for some other insufficient reason, he refused to do so. It is plain, therefore, that Lmnon’s unfaithful conduct has not compelled the plaintiffs to resort to thi's mode of seeking redress: but that the suit has assumed its present form by concert between Linnon and the plaintiffs, because it was supposed that by that means be might, be made a witness in the case, in which he regularly ought to have been the plaintiff. We are not aware of any such precedent, nor any principle upon which such a proceeding could be upheld. There is no privity between the plaintiff and Brown and Foulk, in respect of this paid of the claim between them and Powell, the administrator of Mrs. Robins, which can. make those persons answerable to the plaintiffs, Those persons are answerable, not to the next of kin, but to the personal representatives of the two purchasers. Legatees, next of kin and creditors of a deceased person can only file a bill against a debtor to the deceased, or his trustee, by charging collusion between the debtor or trustee and the personal representative, or some other peculiar circumstances. which give a right to the legatees, next of kin or creditors, to bring that suit which the personal representative might and ought to have brought. Collusion is the usual foundation of such a bill, and without it or some equivalent ground, as the insolvency of the executor or the like, it will not lie. Mit. Pl. 158. Doran v. Simpson, 4 Ves. 665. Troughton v. Binks, 6 Ves. 572. Alsager v. Rowley, Idem. 748. And although in' such cases the general allegation of collusion may be sufficient to shut out a demurrer, yet it is most proper to state the facts, on which the allegation is made; and, rmry clearly, when the cause is brought on to a hearing they must be proved, since the collusion is a material ingredient in the jurisdiction. Benfield v. Solomons, 9 Ves. 77, 86. Dameron v. Clay, 2 Dev. Eq. 17. But there never has been an idea, that legatees and creditors can bring such a bill, for the reason, that the executor could not, or that he would not prove the case, if the suit was brought by himself, but could, as a witness, prove it for the other parties. It would reverse the whole rule that is founded on collusion. This, therefore, is another conclusive objection to the bill. It, however, would not have been adverted to thus particularly, had it not been material to another part of the bill, which will be presently considered and to which it is equally applicable, as it is to the claim under consideration : For, independent of all legal impediments to this part of the plaintiffs’ demand, there is a clear answer to it on the merits, as proved by the witnesses, or admitted in the bill, as a little attention to facts will show. The statement of the bill, as to the subject of the alledged contract, is vague, and perhaps might be property objected to as destructive of the bill altogether, as every bill ought, at least, to state with precision a contract, which it seeks to enforce. Here the language of the bill is, that Brown and Poulk sold to their brothers-in-law, “ their expectations from the reversion of what had passed to the widow in the said division, or their right as next of kin in the personal estate of the widow.” Those defendants .deny any such contract as either'of those alleged, and say that the receipts they gave plainly and correctly express the transaction to have been the payment to them of the several sums remaining due for the distributive shares of their wives ; and there is no evidence of any mistake in drawing those instruments. But passing that by, and proceeding to the fact as stated by the plaintiffs’ witness, we find that the contract between the parties was, that the sums paid to Brown and Foulk were in satisfaction of their wives’ shares of the estate of the father then in the hands of the administrators, and also as the price for their shares in “ the property that went into, and was then in the hands of Dorothy, the widow, which she received in the division of the estate of her husband.” This agreement, therefore, was not for the sale of the daughters’ expectancies, generally, from their mother, but for their expectancies in reference to the slaves arid other property which she received as her distributive share, as widow of Wynn Nance, and th,en had in her hands. From the very nature of such a purchase, admitting the terms of this contract to have been sufficiently specific to admit of execution in this Court, it is subject to the contingencies, that Mrs. Nance did not dispose of that particular property in her life-time, or by her will in favor of •some other person, but that she either should give it to Brown and Foulk and their wives, or die entitled to that property and intestate, whereby distributive shares of it would come to those persons. Thus viewed, the whole subject of the agreement was lost to Mrs. Nance and to her first children by her subsequent intermarriage with Robins, which is stated in the bill; for, by that event, all that property, thus being at the time in her possession, vested in her second husband and could never again vest in her, as her distributive share of Nance’s estate. But it was contended at the bar, that the plaintiffs were, at all events, and laying aside all agreements, entitled to an account from Powell, as administrator of Mrs. Robins, and distribution of the property as her estate. That depends upon the enquiry, whether they are to be taken as her next of kin at her death, or some of them. The plaintiffs are the children and next of kin respectively of Edward W. and Daniel H. Nance,, who were, [we suppose, though it is not stated,] the sons of Dorothy Nance, as well as of her first husband. The death of Dorothy is stated to have been in March 1843, but it does not appear at what time either Edward W. or Daniel H. died whether before or after their mother, supposing her to be their mother. The bill, indeed, alleges that the plaintiffs are, with Mrs. Brown and Mrs. Foulk, the next kin of Mrs. Robins ; but the answers admit only that the plaintiffs are the children and next of kin of their respective fathers, and not that they are some of the next of kin of the widow; and there is no evidence upon the point. Since, then, the plaintiffs do not establish, nor even state, that their father died before their grand-mother; the bill cannot be supported upon any such presumption; for the Court cannot declare the fact, and that is indispensable to enable them to sue in the character of next of kin of the grand-mother. Of course, it lies on every plaintiff to shew his title upon the record. If the bill be considered as being brought by the children and next of kin of the deceased sons, Edward W. and Daniel H. Nance, then the objections recur with still more force, which have been already under discussion : that one of those persons made a will, and that Linonn is the proper person to claim their shares, and that no reason whatever is given why, in respect to this part of the case, he should be made a defendant. The bill must, therefore, be necessarily dismissed with costs; but it will be without prejudice to the rights of the plaintiffs as some of the next of kin of Mrs. Robins, (if they be so,) to bring any other proper suits for their shares of her estate.

Per Curiam.

Bill dismissed with costs.  