
    Philena B. Fisher, administratrix &c., and others, vs. George Hubbell, executor &c., and others.
    Under particular circumstances, a creditor of the estate of a deceased person may maintain an action to collect Ms debt from a debtor to the estate.
    Where H„ the executor of B.’s estate, whose duty it was to see to the collection of the assets of such estate, and to pay the legacies, was also the administrator de bonis non of A.’s estate, which was claimed to be the debtor of B.’s estate; held, that inasmuch as he could not, as executor of one estate, sue himself as administrator de bonis non of the other, he stood in a position which was equivalent, in its effects, to a fraudulent collusion, or a refusal to sue; and that under such circumstances, the legatees under B.’s will, claiming that as such legatees they were creditors of B.’s estate, might maintain an action against H. as executor of B. for the construction of the wills of A. and B. and the establishment of their rights thereunder, and the payment of their legacies. But that, upon the construction of the will of A. as claimed, an accounting between the two estates being necessary, H. was a necessary party to the suit in his character of administrator of A.'s estate, also; and that without Ms presence in that character, the suit would be fruitless and nugatory, and could not proceed to a decree against A.’s estate.
    
      Held, also, that if the legatees could maintain the action at all, they might call for the construction of the will of A.; such construction being necessary to the determination of the question whether A.’s estate was indebted to the estate of B.
    And that, if the plaintiffs could maintain the. action at all, they might join in the same, as creditors having claims-of equal degree, and under like circumstances.
    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 person who is the representative thereof is a party to the suit. He must be made a party distinctly in his representative character.
    Where a defect of parties is apparent on the face of the complaint, but no demur-r'er is interposed, and no suggestion of the defect made until the argument of an appeal from the judgment, • neither party is entitled to costs of the appeal.
    APPEAL from an interlocutory order made at the Erie county Special Term, determining the rights of the parties in an equity case.
    
      H. It. Selden, for the appellants.
    I. The complaint should have been dismissed, on the ground that neither the complaint itself, nor the complaint aided by the proofs, shows a cause of action. As an action to obtain the construction either of the will of Albert Banta, or that of his son, it cannot be sustained. As to the will of Albert Banta: 1. The plaintiffs have no interest in that will, and therefore can maintain no action for its construction. Their legacies give them no more claim to, or interest in, the legacies due to them testator, than to any other part of his property, and they could as well maintain an action to collect a note, or bond and mortgage due to him, or to enforce specific performance of a contract into which he may have entered, or to recover by replevin any personal property wrongfully taken from him, as to maintain this action. 2. The representative of the estate of Albert Banta is not before the court, and without the presence of the representative of that estate as a party, the suit was fatally defective. George Hubbell, as executor of the will of Charles Edward Banta, is before the court,- but as' executor of the will of Albert Banta, he has neither been summoned nor has answered. There are no pleadings, and there is no issue between the plaintiffs and the representative- of Albert Banta’s estate. 3. The complaint does not show in what respect any erroneous interpretation has been, or is likely to be, put upon the will, nor does it point out any interpretation which the plaintiffs claim as the true one. It is not admissible that a party should present a will to this court and ask the court to tell him what it means, without attempting to ascertain and point out the doubts, and without claiming a definite interpretation. Without this the complaint shows no ground for invoking the aid of a court of equity. The complaint sets forth the decree of the surrogate construing the will, but the plaintiffs do not claim that such construction is in any respect erroneous. As to the will of Charles Edward Banta: 1. There is nothing doubtful or uncertain in the will of Charles Edward Banta which requires the' aid of a court of equity for its interpretation. 2. If the will needs interpretation, there is no allegation of such fact in the complaint; much less any such presentation of the subject by the plaintiffs as can sustain the jurisdiction of this court on that ground. 3. It does not distinctly appear that any adjudication upon this will is called for. As an action to obtain an injunction, the case is equally groundless. 1. If the complaint shows no cause for coming into a court of equity to interpret the wills, or either of them, there was certainly no ground for asking this court for an injunction. The complaint shows that Hubbell has paid the plaintiffs over $14,000 toward the $18,000, the amount of their legacies. They do not allege that there is ,any balance due to them ; or if -, there be any, that they have ever demanded it of Hubbell, of that he has-refused to pay it. They say Stanley A. Banta, who had nothing whatever to do with the matter, refused “to pay or satisfy the sum due to them on said legacies,” and this is all that the complaint shows, as to anything due to them, or as to any demand, or as to the willingness or unwillingness of any one to pay their claims, if they have any. If there is anything due to the plaintiffs, they should have so stated, and have given the amount.. The payment of $14,000 on the plaintiffs’ legacies is evidence of good faith on his part, and there is no allegation of misconduct, excepting a vague charge of collusion, which is denied, and no proof is offered on the subject. There is no pretence of insolvency or irresponsibility on the part of the executor; and none that the estate of Charles Edward Banta, without reference to the legacies given him by his father, is not amply sufficient to meet all claims upon it for debts and legacies. If the executor squanders or misapplies any part of the assets of the estate of Charles Edward Banta, or is guilty of negligence in collecting them, whether it be the legacy due from his father’s estate, or any other property or claim, he is personally responsible to the legatees for the consequences of such misconduct or neglect, so far as may be necessary for their indemnity, and their remedy in such case is upon him personally. (Dayton on Surr. 294, 436, 3d ed. Schultz v. Pulver, 11 Wend. 361.) If the executor were irresponsible, or guilty of misbehavior, the remedy of the legatees is not by coming here for an injunction, but by an application to the surrogate to compel him to give security, or to remove him and appoint a responsible man in his place. Express power is given to the surrogate to enjoin the executor from acting during the pendency of the proceedings. (4 R. S. 497, § 61, Edm. ed. Laws of 1837, p. 535. Dayton on Surr. 642-647. Mandeville v. Mandeville, 8 Paige, 475. But neither the misconduct of the executor, however gross, nor his utter insolvency, could give to these plaintiffs any legal or equitable interest in the legacies given by the will of Albert Banta to their testator, or any right to maintain an action in regard to them. If they could do so, every creditor of Albert Banta could do the same, as they have claims on that estate paramount to those of legatees, general or specific. (Dayton on Surr. 445, 446.) The complaint is equally defective as an action to recover the legacies. 1. It is not alleged that anything is due on the legacies; or, if anything is due, that it has been demanded ; or that there, has been any refusal to pay the amount due. Nor does it comply with the requirement of the Code, that, “if the recovery of money be demanded, the amount thereof shall be stated.” (Code, § 142, subd. 3.) 2. The plaintiffs have no joint interest, and the complaint furnishes no means of ascertaining the amount (if anything) due to each. 3. It does not appear from the complaint that the executor has any assets with which to pay whatever may be due. - 4. The prayer for general relief is so interwoven with the claim for interpretation of the wills, as not to justify any judgment for the mere payment of the legacies, if the case should otherwise warrant it. The complaint is required by the Code to contain “a demand of the relief to which the plaintiff supposes himself entitled.” (Code, § 142, subd. 3.) 5. Not only a demand must be made, but a bond must be given, and the complaint must allege that there are assets in the hands of the executor, more than sufficient to pay the debts of the testator. (2 R. S. 114, §§ 9, 10.)
    II. The court erred in holding that there was, by the will of Albert Banta, an equitable conversion of his real estate into money. If any such conversion was wrought, it was by the codicil; nothing in the original will touches that subject. The codicil simply directs Sarah B. Banta to sell and convey all the real estate, as to her “shall seem meei| and to the best interests of my [his] said estate.” The objects for which the conversion of the real estate was directed had failed before that part of the lands, the proceeds of which are in dispute in this case, were sold.
    III. The judge erred in holding that the decree of the surrogate of March 27, 1871, was not valid and effective to conclude any person interested in the estate of Charles Edward Banta, excepting Stanley A. Banta, and that the estate of Charles Edward Banta was not represented on that accounting, and was not bound thereby. The decree of the surrogate recites that all persons interested in the estate of Albert Banta, deceased, were duly cited to attend, which included the executor of the will of Charles Edward Banta, one of the legatees of Albert Banta, and it recites specially that Mr. Crittenden and Mr. Rowley both appeared in support of the claims of such executor. How an “estate” can be represented in legal proceedings, except by its legally constituted representative, in person or by counsel, we do not know. Here such representative was duly served with a citation to appear, and appeared by two counsel. If that was not such an appearance as to bind him, then there could be none which would bind him; and if it bound him, it bound the estate, because no one could appear for the estate but him. The recital of these facts in the decree cannot be attacked in this collateral way. (Dyckman v. The Mayor &c., 5 N. Y. 434. Sheldon v. Wright, Id. 497, 514. Voorhees v. Bank of U. S., 10 Peters, 449. Bridgeport Sav. Bank v. Eldridge, 28 Conn. 556.) Again ; the complaint sets forth this decree, and makes no allegation against its truthfulness or its validity. There was no issue on the subject; we were put to no proof on the subject, and for that reason, if for no other, the judgment of the court below on this point is wrong. The rule is explicit and absolute, that a party must recover in chancery according to the case made by his bill, or not at all; secundum allegata as well as probata. 
      
      (Bailey v. Ryder, 10 N. Y. 363, 370. Schooner Hoppet v. United States, 7 Cranch, 389, 395; S. C., 2 Cond. R. 542. Harrison v. Nixon, 9 Peters, 503. Garland v. Davis, 4 How. U. S. 148. Thomas v. Austin, 4 Barb. 265, 273. N. Y. Cent. Ins. Co. v. Nat. Protec. Ins. Co., 20 id. 468, 473.) The surrogate had jurisdiction of the subject matter, and his decree was conclusive, subject only to correction on appeal. (2 R. S. 97, § 66. 6 Edm. Stat. 700, ch. 115.) The surrogate was compelled to pass upon the items of account, and doing so, necessarily passed upon the questions in dispute here: •
    IV. The judge erred in finding that the legacies given by the will of Charles Edward Banta were made payable out'of the real’ estate of which he died seised, in case of a deficiency of personal assets. This conclusion of law is palpably erroneous.. There is not a word in the will from which such an inference can be drawn, and if the legacies in this case are charged on real estate, every legacy is so charged where the contrary is not expressed. That the contrary is the true rule, to wit, “that real estate is not charged with the payment of legacies, unless the intention of the testator to that effect is expressly declared, or clearly to be inferred from the language and dispositions of the will,” is well established. (Lupton v. Lupton, 2 John. Ch. 614, 623. Reynolds v. Reynolds' Ex., 16 N. Y. 257. Kinnier v. Rogers, 42 id. 531. Lynes v. Townsend, 33 id. 562.)
    V. The judge erred in finding that all the funds and property disposed of by the will of Albert Banta and the will of Charles Edward Banta, not before distributed, were within the jurisdiction of the court, and that all persons interested in either of said estates, were parties to, and had appeared in, this action. 1. Whether all such funds and property were before the court, was not a question in the case. There were neither pleadings nor evidence on the subject; and for that reason, as shown above, the finding was erroneous. 2. The executor of the will of Albert, as has been shown, was not before the court, and there was neither complaint against him, nor appearance, nor answer by him.
    VI. The finding that half the money that had come into the hands of Hubbell, as administrator with the will annexed of Albert Banta, belonged to and should be paid oyer to the executor of the will of Charles Edward Banta, is erroneous. 1. It is erroneous for the reasons given under the second point. 2. It is erroneous because there is no representative of the estate of Albert Banta before the court. 3. It is erroneous because it takes no account of what might be the condition of the estate of Edward Banta, but adjudges, absolutely, that one-half that money belongs to one of the two residuary legatees, when the whole may be required to pay debts or prior, legacies. 4. But it is most erroneous because the plaintiffs, admitting the law and facts to be correctly found, had nothing to do with the matter, and had no right to any such decree.
    VII. The order that Hubbell account as the administrator of the estate of Albert Banta, and that he produce before the referee books, papers and writings, and be examined as the referee shall direct, is wholly without foundation. 1. For the reason that as administrator of the estate of Albert Banta, Hubbell is not in the case. 2. The plaintiffs have nothing to do with the estate of Albert Banta, and cannot call its representative to account. 3. They are legatees only of Charles Edward Banta, and their remedy for the collection of their legacies is that pointed ont by the statute referred to. If under any circumstances they could proceed in equity against the estate of Albert Banta, they certainly cannot do so without showing a necessity for it, by having first pursued and exhausted their remedies against the estate of their immediate testator.
    VIII. The direction that Hubbell, out of the moneys belonging to the estate of Charles Edward Banta, pay the plaintiffs the several legacies bequeathed them, is erroneous. This is a most extraordinary order. 1. It gives the plaintiffs a judgment for their legacies, in disregard of the'conditions imposed by the statute. (2 R. S. 114, §§ 9, 10. Id. 451, §§ 19, 20.) 2. It adjudges that he is to pay the whole legacies, without reference to the amount already paid, and without reference to the sufficiency of assets. 3. It specifies no amount, and is exactly equivalent to a judgment in an action on three notes, that he pay the amount of the notes at his peril. 4. The plaintiffs have no joint interest in the legacies, and yet here is a. judgment that he pay to them jointly, the several legacies, when he shall find out Avhat they are.
    IX. The direction that if the moneys to be paid by Hubbell as executor of the estate of Charles Edward be insufficient to pay the plaintiffs their legacies in full, with interest, then the lands owned by Albert Banta, at the time of his death, be sold to make up the deficiency, and that Stanley A. Banta join in the deed to be given by the referee, is • erroneous. The plaintiffs have legacies given them by Charles Edward Banta. This judgment is, that if their testator’s estate shall prove insufficient to pay their legacies in full, then the lands of some other responsible estate shall be sold to make up the deficiency. As a legal proceeding, there arengóme difficulties in "the way of this. 1. Albert Ban-ta’ s estate is not represented here, and has had no chance to be heard. 2. Ho consideration is given to the subject of what other claims there may be of creditors or other legatees upon Albert Banta’s estate, but the entire proceeds of the lands are to be applied “to make up the deficiency” of the plaintiff’s legacies. 3. Ho provision is made for applying any personal assets of Albert Banta, if there should be any, in exoneration of the lands, but the lands must be sold. 4. Ho lands are déscribed, but the referee is given a roving commission to hunt up, if he can, any lands “owned by Albert Banta at the time of his death,” and to sell them. 5. And although the judge has already decided, that one-half these lands belonged to Stanley A. Banta, he orders the whole to be sold and the proceeds to be paid to the plaintiffs ; and orders Stanley A. Banta to join in the deed; thus compelling him to convey his property to pay the legacies to these plaintiffs. 6. All this is without any foundation laid for it in the pleadings, and is in utter disregard of the provisions of the statutes, to which reference has been made.
    
      X. The direction that if Stanley A. Banta had been paid more than his full share out of the estate of Albert Banta, he should pay over to Hubbell as executor of the will of Charles Edward Banta such sum as would make the receipts of that estate equal to the sum received by himself, is erroneous. 1. This is a matter that these plaintiffs have no business to interfere with. If any thing is due to Mr. Hubbell, as executor, or otherwise, from Stanley A. Banta, he is abundantly capable of attending to its recovery himself. 2. Ho foundation for any such investigation is laid in the pleadings, it is not in issue, and there is no evidence on the subject.
    XI. The direction that the costs be paid out of the estate of Albert Banta is wrong. 1. The ultimate object of the plaintiffs in this suit, is to collect a balance due to them on legacies left them by Charles Edward Banta ; with what propriety the costs of such a suit can be charged upon the estate of Albert Banta, it is not easy to discover. 2. Albert .Banta’s estate is not represented in this case, and certainly it ought to be heard on tibia question.
    
      W. W. Rowley and Re L. Crittenden, for the respondents.
    I. Upon the death of Albert Banta, his real estate vested immediately in his two sons, subject to' be divested by the execution of the power of sale given his executrix. (Crittenden v. Fairchild, 41 N. Y. 289.) This power of sale is á general power in trust, of which the widow and two sons are the beneficiaries. (1 R. S. 734, § 94.) The intention of the testator is the law of this will. This intention must be derived from the words used in the will, and from nothing' else. (Mann v. Mann, 14 John. 1.) These words are to be understood in their plain, ordinary, popular meaning and acceptation. (Chit, on Cont. 81. 4 Kents Com. 535, marg., note.) The plain, unambiguous words of a will must prevail, and are not to be controlled or qualified by any conjectural or-doubtful construction growing out of the situation, circumstances or condition either of the testator, his property or family. (Redf. on Wills, 430. Yates v. Compton, 2 P. Wms. 308.) Viewing this will in the light of the above rules, the testator made an equitable conversion of his real into personal, “out and out.’-’ The test, whether a conversion is “out and out,” is, has the testator left the sale discretionary with the trustee ? The positive direction to sell all, leaves no place for any discretion.. The sale is to take place in any event. (Arnold v. Gilbert, 5 Barb. 190. White v. Howard, 46 N. Y. 162. McCarty v. Deming, 4 Lans. 440. Graham v. Dewitt, 3 Bradf. 186. Flint v. Warren, 14 Sim. 554. Doughty v. Bull, 2 P. Wms. 320.) This direction converts the whole estate into personal, from the death of the testator. (Bramhall v. Ferris, 14 N. Y. 41. Stagg v. Jackson, 1 id. 206. Kane v. Gott, 24 Wend. 641. Martin v. Sherman, 2 Sandf. Ch. 341. Leigh & Dalzell, 48.) The whole of Charles Edward’s estate at his death was personal, and must, so far as necessary, go in payment of the plaintiffs’ legacies. (Cook v. Duckenfield, 2 Atk. 567.)
    II. If we are permitted to imply the reason why the testator thus impressed his estate as personal, (which is not conceded,) it is very plain it was to enable Ms executrix to carry out the several trusts created by Ms will, to wit: To support and educate the sons; to pay them $1,000 each, at the age of twenty-one; to invest a large sum for the maintenance of the widow, and, possibly, to make division of the realty between the sons; none-of them had been executed at the death of Charles Edward. So long as the purpose of the sale and conversion exists, so long the quality of personalty is effectually stamped upon the estate, and courts treat it as such. (Bogert v. Hertell, 4 Hill, 492, and case cited.) The whole estate of Albert Banta, real and personal, at his death, vested immediately in his two sons, in equal parts, subject to the provision in favor of the widow, and was, at that instant, by either of them, (if of age,) assignable and devisable. (Lovett v. Gillender, 35 N. Y. 617. Oxley v. Lane, Id. 340. Burrill v. Sheil, 2 Barb. 470.) The trust not to divide the property till the youngest son should arrive at the age of twenty-three, is void. (Horton v. McCoy, 47 N. Y. 21.) The death of Charles Edward, after he had bequeathed a large portion of Ms estate, did in no sense obviate the necessity of the sale of the real estate. The satisfaction of the bequests in his will required a sale the same as if he had lived. The legatees pro tanto stand in his place. (Smith v. Claxton, 4 Mad. 484. 8 Paige, 37. Bogert v. Hertell, 4 Hill, 492. Leigh & Dalzell on Cont. ch. 6.) The conversion was “out and out,” as respects the payment of the plaintiffs’ legacies.
    III. Conceding that the estate of Charles Edward, at Ms death, was composed of personal and real, the legacies in Ms will are charged upon the real, by reason of his blending in one common fund both personal and real. (Roman Catholic Church v. Wachter, 42 Barb. 43. Lewis v. Darling, 16 How. U. S R. 1. Tracy v. Tracy, 15 Barb. 503. Shutters v. Johnson, 38 id. 80. Perry on Trusts, § 570, and cases cited. Hill on Trust. 
      360, marg.) Tlie testator considers Ms whole estate as personal, and so treats it. The executor is directed to pay these legacies, and by the last clause of the will is given “ all needful and necessary power and authority to carry out the provisions hereof.” This gives him a perfect power of sale of the real estate for the purposes of the will. (Morton v. Morton, 8 Barb. 18. Dorland v. Dorland, 2 id. 63. Jackson v. Veeder, 11 John. 169. Going v. Emery, 16 Pick. 107. 4 Kent's Com. 319, marg. 1 Sugd. on Powers, 118, marg. Bull. & Tiff. on Trusts, 753.) The. courts will enforce the sale, if necessary to carry out the provisions of the will. The plaintiffs’ legacies must be satisfied from any property the testator died possessed of.
    IV. The decree of the surrogate on the final accounting of the defendant, Geo. Hubbell, administrator, &c., of Albert Banta, is in no manner a bar to this action. So far as it relates to the judicial construction of the will of Albert Banta, or the disposition of the real estate under that will, and so far as it attempts to reverse the former decree of the surrogate,.it is void, for the want of jurisdiction. (2 R. S. p. 94, § 65. Shumway v. Cooper, 16 Bart. 556. Bank of Poughkeepsie v. Hasbrouck, 6 N. Y. 216. Tucker v. Tucker, 4 Keyes, 136. Brick's Estate, 15 Abb. 36. In re Vandervoort, 5 N. Y. Sur. R. 270.) The estate of Charles Edward Banta was wholly unrepresented on such accounting. The defendant George Hubbell, as administrator, &c., instituted the proceeding; he could not at the same time represent the adverse interest of the estate of Charles' Edward in the capacity of executor. (Davoue v. Fanning, 2 John. Ch. 252. Perry on Trusts, § 432. Story's Eq. §§ 322, 1,211. Dun. on Paley's Ag. 33, 34.) His assuming so to act, rendered void any decree of the surrogate, so far as it. affected the estate of Charles Edward. (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co., 14 N. Y. 85. Utica Ins. Co. v. Toledo Ins. Co., 17 
      Barb. 132.) Admitting that the estate of Charles Edward was properly represented on snch accounting, the plaintiffs were in nowise barred by such decree. They had no interest in that proceeding, were not cited, nor in any way represented. (Bank of Poughkeepsie v. Hasbrouck, supra. Elwood v. Deifendorf, Barb. 407.) The statute declares of what such decree shall be conclusive, and' -who shall be concluded by it. (2 R. S. 94, § 65. Clapp v. Meserole, 38 Barb. 661; affirmed, 1 Keyes, 281.) Only parties-and privies are bound by a judgment. (1 Stark. Ev. 218, marg.) The rule is universal that one is not bound by a judgment, who would not be permitted to make a defence, to examine witnesses, or to appeal from the judgment. (Phil. Ev. 222. Douglass v. Howland, 24 Wend. 35. Case v. Reeve, 14 John. 78. Sups, of Monroe v. Budlong, 51 Barb. 493.) The term privity denotes mutual or successive relationship to the same rights of property. (1 Greenl. Ev. § 189. Goddard v. Benson, 15 Abb. 191.) The language of the books is, “parties and all claiming under them.” (Douglass v. Howland, supra.) An executor maintains no such relations toward the heirs, next of kin, legatees or creditors. He is simply the trustee to carry out the purposes of the will. (Osgood v. Manhattan Co., 3 Cowen, 612. Mason's Devisees v. Peters' Adm., 1 Munf. 437. Elwood v. Deifendorf, 5 Barb. 407, and cases cited.) This action can be sustained for the construction of the will of Charles Edward Banta, which no one claims has ever, been judicially construed.
   By the Court, Talcott, J.

Albert Banta, a resident of the county of Ontario, died there prior to Februry 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 Hubbell 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 com: menced 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 testators death, and therefore that the share or proportion of that estate to which, under the will of Albert Banta, his deceased son Charles Edward was entitled, was personal property due, and which ought to be paid over to the said Hubbell 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 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, and 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 has determined both the propositions above stated in favor of the plaintiffs.

We think the plaintiffs have a right,.under the circumstances of this case, 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 common 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 paymént 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. Newland v. Champion, 1 Vesey, Sr., 105. Doran v. Simpson, 4 Vesey, Jr., 651. Alsager v. Rowley, 6 id. 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 M. & K. 127, 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 de bonis non of the estate which is claimed to be the debtor of Charles Edward Banta’s estate. He cannot, as exector of Charles Edward, sue himself as administrator of Albert. (Trustees &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 cas,es 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 also 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. (Barb. on Part. 385. Story’s Eq. Jur. §§ 532-538. Lentilhon v. Moffat, 1 Edw. Ch. 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 party 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. Therefore, without 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 Gieorge 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.

[Fourth Department, General Term, at Buffalo,

June 27, 1873.

Mullin, Talcott and M. D. Smith, Justices.]

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 them 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. All 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.

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.  