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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Volume 3, Page 47   View pdf image (33K)
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TESSIER v. WYSE.—3 BLAND. 45

that when the same person has both funds in him, it could not be
indispensably necessary to * have any such account taken;
because it was immaterial, as to such person, out of which 58
fund, the real or personal estate, the debt was paid—and therefore
the suit was allowed to proceed against his heir without making
his personal representative a party. Williams v. Williams, 9 Mod.
300; Daniel v. Skipwith, 2 Bro. C. C. 155; Holland v. Prior, 7 Cond.
Cha. Rep. 25; Tyson v. Hollingsworth, 2 Bland, 330, note. So here,
these children of William Wyse, deceased, being entitled to the real
estate as his heirs, and to the personal as his next of kin, they had
both funds in them, the realty by descent, and the personalty left
in the hands of Rachel Wyse, the late administratrix, as next of
kin: so circumstanced, it is immaterial as to them, out of which
fund the debt is paid, whether from the real or the personal estate;
since, as the plaintiff's claim has been established, it must, in any
event, be satisfied out of property to which they would otherwise
be entitled. And therefore it appears upon the face of these pro-
ceedings, that the suit may well be permitted to go on without
making the personal representative of Rachel Wyse, deceased, a
party.

Supposing, however, all that has been said as to the liability of
these heirs in respect of the real estate in their hands, to be erro-
neous, yet there cannot be a doubt as to the liability of this ad-
ministrator de bonis non, Joseph Allender, to the extent of the
assets he admits he has in his hands. As against him, the claim
of the plaintiff Tessier, is unquestionable, and in every point of
view incontrovertible. The defendant Allender, it is true, states
his ignorance of it in some particulars; but he has sustained no
manner of defence against it; and therefore, upon every ground
of law and equity, the plaintiff Tessier, must be entitled to obtain
satisfaction to the full amount, or at least, to the extent of a due
proportion of the assets admitted to be in the hands of this ad-
ministrator de bonis non. So that if this bill were to be totally
dismissed as against these heirs, and Riston who claims under
some of them, as regards the realty; yet it must be sustained as a
creditor's suit against this administrator de bonis non, alone; since
it has been firmly and well settled, by a long course of practice,
that this Court may, under a bill of this kind, assume the admin-
istration of the personal estate, for the benefit of all the creditors
of the deceased, at the instance of any one creditor on behalf of
himself and others, as against the executor or administrator
* alone. 1 Mad. Pra. Cha. 578; Mitf. Plea. 166; David v. 59
Frowd, 7 Cond. Cha. Rep. 8; Hammond v. Hammond, 2 Bland, 307;
The Bank v. Dugan, 2 Bland, 254. So far as the personal assets in
the hands of this administrator de bonis non will go, the plaintiff
Tessier, must have awarded to him the relief he asks, even if he
should have to turn round afterwards to recover the unsatisfied

 

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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Volume 3, Page 47   View pdf image (33K)
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