
    Garret and others vs. Joseph R. Stilwell’s executors and others.
    Joseph M. Stilwell smd Joseph R. Stilwell were the administrators of Benjamin Stilwell. They were both deceased. The bill called upon the executors of Joseph 11. Stilwell for a resettlement, and to account for the estate of Benjamin Stilwell, and to pay complainants their distributive share. Held, that if they were entitled to a distributive share, they could not call upon the executors of a surviving administrator for any such account; that the executoi's did not represent the estate of Benjamin Stilwell.
    Benjamin Stilwell, at his death, left his brother, Joseph R. Stilwell, and two sisters surviving him. The complainants were the heirs at law and next of kin of Joseph R. Stilwell. Held, that as they stood in the place of Joseph R. Stilwell, they had no right to complain of his fraudulently using what they claimed through him.
    
      W. Halsted, for complainants.
    
      Cannon and W. L. Dayton, for defendants.
   The Chancellor.

The complainants cannot maintain this bill. They seek relief, alleging themselves to be the, heirs at law and next of kin of Benjamin Stilwell, deceased, and, as such, claim the one-third part of the distributive share of his personal estate and the one equal thix’d paxd of his real estate. Joseph M. Stilwell and Joseph B. Stilwell were the administrators of Benjamin Stilwell. The bill alleges that the administx’atox’s fraudulently administered the estate; that they exhausted the personal estate in the payment of false claims, and then fraudulently procured an ox*der of the Oxphans Court of the county of Burlington to sell the x'eal estate, and used the proceeds of the sale ixx fraudulently paying other illegal claims. Joseph M. Stilwell and Joseph B. Stilwell are both deceased. The representatives of Joseph B. Stilwell are not before the court, but the bill calls upon the executors of Joseph M. Stilwell, one of the administrators of Benjamin Stilwell’s estate, for a resettlement, and to account for the estate of Benjamin Stilwell, and to pay the complainants their distributive share of that estate. It is manifest, if the complainants are entitled to such distributive share, they cannot call upon the executors of a surviving administrator for any such account, and for the very plain reason, that the executors do not represent the estate of Benjamin Stilwell. The defendants have no more to do with those accounts than the complainants themselves have.

But the complainants have no more right here, in the capacity of next of kin and heirs at law of Benjamin Stilwell, than the defendants have as personal representatives of his estate. The complainants show, by their bill, that they cannot claim in that capacity. Benjamin Stilwell, at his death, left his brother Joseph B. Stilwell and two sisters surviving him. The complainants ax*e the heirs at. law and next of kin of Joseph B. Stilwell, and if there is any estate of Benjamin Stilwell which Joseph B. was entitled to, the complainants must claim through him, and as his heirs and next of kin. They now allege, by their bill, that Joseph R., through whom they claim, and his co-administrator squandered their intestate’s estate. One-third of it belonged to Joseph R. Stilwell, through whom they claim. How can the complainants complain of his fraudulently using what they claim through him ? The complainants stand in the place of Joseph R. Stilwell, and their right to maintain this suit is no better than Joseph R. Stilwell’s would have been had he been here as complainant. The foundation of their bill is, that the property they claim belonged to Joseph R. Stilwell. He had a right to do what he pleased with his own. It is just like a son calling the executors of his father to account for the property which his father had squandered, on the ground, that if the property had not been squandered, it would have come to him as the next of kin. What an extraordinary exhibition would have been made if Joseph R. Stilwell had filed a bill against the executors of his co-administrator, calling upon them to respond for a fraud which he, Joseph R. Stilwell, had committed in conjunction with his co-administrator ? And yet these proceedings exhibit just such a case.

There are many other objections fatal to the complainants, but it is really treating the case too seriously to notice them. The bill must be dismissed with costs.  