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TESSIER v. WYSE. 57
Her personal representative has not been made a party to this suit,
nor has it been in any way stated, or shewn, whether she died in-
testate or not; whether or not administration of her estate has been
granted to any one; or whether she left any personal estate to be
administered or not. Yet according to the general rule, that an
executor or administrator of a deceased executor or administrator of
the deceased debtor, who, at the time of his death, had assets in Ms
hands, must be made a party to enable the court to obtain a com-
plete account of the whole personal estate of the deceased debtor,
so as to do justice to all by having the personal estate applied in
the first place in discharge of the inheritance; (x) it is clear, that
the executor or administrator of Rachel Wyse should have been
brought here as a party, if it does not appear upon the face of these
proceedings, why such a party has not been, could not be, or need
not be called before the court, (y)
We have seen that in the case of the death of a debtor, after
judgment, the scire facias against the heirs and terre-tenants must
warn them all to appear; and that in equity the personal represen-
tative must be made a party with the heirs. But the reason why
all the terre-tenants in the one case, and the executor or adminis-
trator in the other, must be brought before the court, is, as has been
shewn, not to enable the creditor to recover; but that the defen-
dants may be enabled to obtain the contribution from each to which
they are respectively entitled, or that the personalty may be first
applied in aid of the realty, so that the burthen may be at once
placed where it ought to rest, and no unnecessary injury done to
any one.
This considered as a right, existing only among such defen-
dants, is one which a terre-tenant may decline to take advantage
of; (z) or an heir may even verbally disclaim, (a) But where the
reason ceases the law ceases; and therefore, it has been held, in a
suit of this kind, that when two persons are entitled, one to the
personal estate, and tie other to the real, as the court cannot do
justice to him who has the real estate, without taking an account
of the personal in the first place, in relief of the real estate, both
of them must be made parties; but that when the same person
had both funds in him, it could not be indispensably necessary to
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(x) Williams v. Williams, 9 Mod. 299; Holland v. Prior, 7 Cond. Cha. Rep. 22.—
(y) Hammond v. Hammond, 2 Bland, 307.—(z) Jefferson v. Morton, 2 Saund. 9,
note 10.-(a) Clinton v. Hooper, 3 Bro. C. C. 214; S. C, 1 Ves. jun , 188,
8 v.3
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