
    RODGERS vs. RUSHIN.
    Where an executor dies pending a suit in equity against him, in which the complainants are attempting to fix a personal liability upon him on account of an alleged devastavit of the estate of his testator, it is proper that his representative should be made a party to the proceeding.
    In Equity, in Macon Superior Court. Decision on motion to make parties, by Judge Lamar, March Term, 1860.
    Joel F. Rushin et al.¡ as legatees under the will of John Rushin, deceased, filed their bill in equity for discovery, account, distribution, etc., against John C. Rodgers, executor of John Rushin, deceased, and Cicero H. Young and John M. Felton, executor of Shadrach R. Felton, deceased, who, in his lifetime, was also executor of John Rushin, deceased.
    It was charged in the bill that John C. Rodgers, Shadraeh R. Felton, and William Rushin, who were appointed executors of the will of said John Rushin, deceased, all qualified, but that Rodgers and Felton took charge of the property, and, therefore, no decree was prayed for against William Rushin. The object of the bill was to recover what was due complainants as legatees under said will.
    Pending this suit, John C. Rodgers, one of the defendants, died, and his widow, Mary C. Rodgers, was appointed administratrix on his estate.
    
      Scire faeias was served on her to make her a party defendant in said bill, to which she objected.
    The Court passed an order requiring her, as administratrix, to be made a party defendant, and to answer the bill within four months thereafter, to which she excepted.
    Wm. Y. Hansell, for plaintiff in error.
    Blandford & Crawford, eontra.
    
   By the Court.

Lumpkin, J.,

delivering the opinion.

Ought Mary C. Rodgers, as administratrix of John C. Rodgers, deceased, to have been made a party defendant to the case? We think so.

The bill was filed by the legatees of John Rushin, deceased, against John C. Rodgers, executor of John Rushin, deceased, and Cicero H. Young and John M. Felton, executors of Shadrach R. Felton, deceased, who, in his lifetime, was also executor of John Rushin, deceased, for discovery, account, and distribution.

It is charged in the bill, that John C. Rodgers, Shadrach R. Felton, and William Rushin, were all appointed executors of John Rushin, deceased; and that all qualified, but that Rodgers and Felton took charge of the property, and, therefore, no decree is prayed for against "William Rushin. John C. Rodgers, one of the executors, having died, shall his administratrix be made a defendant? The bill charges John C. Rodgers with a devastavit, that he had sold the whole of the property belonging to the estate of his testator, and converted it into money. It is altogether proper, therefore, that his representative should be made a party to a proceeding which seeks to fix a personal liability upon his estate.  