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56 TESSIER v. WYSE.
the assets shewn to be in the hands of Joseph Allender, on the
23d of January, 1824, had been consumed chiefly or altogether by
these very heirs and next of kin of the deceased, who are now here
as defendants resisting the payment of this claim from the real
estate in their hands, (s)
A creditor cannot be held bound to guarantee the faithful and
proper administration of his deceased debtor's estate; and there-
fore where, without any fault or connivance of his, the executor or
administrator wastes the personalty, the entire residue of the estate
real and personal must be held as absolutely liable to such creditor,
in all respects, as if no such waste had been committed, or as if the
estate had been justly applied in a due course of administration, (t)
But here, under these circumstances, a court of equity cannot,
certainly, tolerate such a defence as this, that there was origi-
nally a sufficiency of personal estate to pay all the debts of the de-
ceased, coming, as it does, from defendants who are both heirs and
next of kin, and for whose maintenance and education the personal
estate had been thus reduced, so as to exclude a creditor from the
real estate in their hands, upon the ground of there having been
originally a sufficiency of personal estate to pay the debt. Because
if there has been, in contemplation of law, a waste of the personal
estate, it was a misapplication of it in which they have largely
participated; and because, if there has been any negligence in the
plaintiff Tessier, it was a sort of indulgence by which they have
been greatly benefited. Such a defence comes with an exceedingly
ill grace from those of these defendants who are the heirs and
next of kin of the deceased; and therefore cannot, under the cir-
cumstances in which they stand, be allowed to avail them, or the
defendant Riston who claims under them, in anyway whatever; (u)
but the real estate in their hands must be held liable, as in cases
where a third person is held liable, because of his collusion with the
administrator in misapplying the assets, (w)
It is here stated and admitted, that the administratrix Rachel
Wyse had in her hands all the personal estate of the debtor William
Wyse deceased; and that she died without having accounted for
what she admitted she had in her hands on the 29th of June, 1816.
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(s) Allender v Riston, 2 G. & J. 86.—(t) Hardwick v. Mynd, 1 Anstr. 112.~(u)
Williams 9. Williams, 9 Mod. 390; Daniel v. Skipwith, 2 Bro. C. C. 155.-(w)
Elmalie v. M'Aulay, 3 Bro. C. C. 624; Doran v. Simpson, 4 Ves, 651; Alsager v.
Rowley, 6 Ves. 749; Benfield v. Solomons, 9 Ves 86.
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