
    [Philadelphia,
    January 9, 1826.]
    MOORE and Wife, against REES and others.
    IN ERROR.
    In a suit for a legacy charged upon land, against the executor of the devisor and the terre-tenant, it is improper to join as defendant the executor of the devisee.
    This suit was brought in the Court of Common Pleas of Chester county, in debt to recover a legacy charged upon land. It was brought by Thomas Moore and Mary his wife, to the latter of whom the legacy was bequeathed, against David Rees, executor of Violetta Rees, deceased, who was the surviving executor of Mel Rees, sen., deceased, and Mary Rees, William Davis, and Benjamin Wetherby, executors of Jib el Rees, jr., deceased, David Rees, Mary Rees and George Lary, terre-tenants.
    
      Mel Rees, sen., deceased, bequeathed by his last will the sum of two hundred pounds to his daughter Mary, the plaintiff, while single, and charged the same upon land which he devised to David Rees and Mel Rees, jr., who after the testator’s death entered into the land and occupied it. Mel Rees afterwards died, having made his will and appointed the defendant Mary, his wife, William D.avis and Benjamin Wetherby, his executors. Mary Rees 
      continued in possession after her husband’s death. George Lary was also a terre-tenant.
    On the trial the defendants objected that the suit was improperly” brought, and the court charged the jury as follows:—
    
      “ The declaration charges, that all the defendants were indebted to the plaintiffs. It sets out the manner of the obligation to pay, and avers that an action had accrued against all. If an action hath not accrued against all, it is not supported. Now, it appears very clear, according to the course approved in Brown v. Furer, and Gause v. Wiley, that an action for the recovery of a legacy charged on land in Pennsylvania, should be brought against the executors of the devisor, (who must be brought into court and suffered to show, if necessary, that the land is required for the payment of debts,) and against or with notice to the devisees, owners, or terre-tenants of the land; for it is against the land that judgment has to be rendered. But if one of the devisees of the land charged, alienes subject to the charge, the action will not lie against the alienor, without an express promise. And if the devisor dies, his heirs, (because they become the owners,) and not his personal representatives are liable, except in the case of an express promise. The executors of Mel Rees, jr., one of the devisees are therefore improperly joined, and the plaintiffs cannot recover in this' action.” ;
    To this opinion the plaintiffs excepted.
    
      Edwards and Kittera, for the plaintiffs.
    
      Tilghman, contra.
   The opinion of the court was delivered by

Gibson, J.

In an action to recover money payable out of land, •there must be legal parties; and it is certain that unless it lies against all the defendants, the plaintiff cannot recover. It has been decided that it is necessary to join the executor of the devisor, but to join the executor of the devisee would be going much further. The devisee is not personally liable, but only in respect of the land; and there would therefore be an incongruity in substituting the executor, who is not his representative in respect of the land, (the heir representing him exclusively in that respect,) but who is his representative exclusively in respect of the personal property. He has no concern with the land before it is brought into a course of administration, and it is not his official duty to defend in an adverse proceeding, which lies against it specifically. It is said to be a fund ultimately liable to the payment of the debts, and that the executor ought therefore to have an opportunity to-defend for the benefit of the creditors. But the same reason would require him to be made party to an ejeetment brought adversely to his testator’s title; which has never yet been done. The true reason, I apprehend, why even the executor of the devisor is made a party in an action for a legacy charged on land, is to preserve, as nearly as possible, the analogy which it bears to the action for a legacy payable by the executor', which is given by the act of assembly; and 4o avoid, as much as may be, the appearance of assuming a power beyond the law, even where it is justified by the most imperious necessity. The executor in such ease is joined, not because it is supposed to be his duty or his interest to show that he himself has discharged the land — he would be guilty of a devastavit if he had, and it is therefore his interest to show that he has not — but to observe, as nearly as may be, the form of action prescribed in other cases by the act of assembly: for if the devisee has discharged the land, the defence and the evidence necessary to support it, may safely be intrusted to him. Beside, the creditors of’ the devisor claiming by title paramount to that of the devisee, would not be precluded by a sale of the land to raise legacies charged on it, but might reach it in the hands of the purchaser as readily as in the bands of the devisee. Nevertheless it is proper, for the reason I have suggested, that the executor of the devisor should be joined. But the case is entirely different as to thé executor of the devisee. He is in no respect a necessary part of the machinery by which the land is to be reached, either as answering the requisition of the act of assembly in point of form, or as representing the interest of his testator. The interest to be defended is in the heir, and he therefore is the proper party. If then it be not necessary to make the executor of the devisee a party, does it stand indifferent whether be be so or not? The injustice of exposing him to the vexation of a suit with which he has no concern, is obvious: and, beside, I cannot see how the personal estate of his testator could be extricated from payment of the costs, in case the land should prove insufficient. This would be an application of the personal estate to a charge on the land, which the legatees ought not to bear. Add to this, that the complication of parties that would ensue from bringing all the real and personal representatives of the several terre-tenants on the record after a few descents, would be extreme and highly Inconvenient in practice. I am therefore of opinion, that the court below was right in holding that the action, in its present form,, ijould not be maintained.

• Judgment affirmed.  