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58 TESSIER v. WYSE.
have any such account taken; because it was immaterial, as to
such person, out of which 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, (b) 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 de-
scent, 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 proceedings, that the suit may well be per-
mitted 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 admi-
nistrator de bonis non, Joseph Allender, to the extent of the assets
be admits he has in his hands. As against him, the claim of the
plaintiff Tessier, is unquestionable, and in every point of view in-
controvertible. The defendant Allender, it is true, states his igno-
rance of it in some particulars; but he has sustained no manner
of defence against it; and therefore, upon every ground of law
and equity, lie plaintiff Tessier, must be entitled to obtain satis-
faction to the full amount, or at least, to the extent of a due pro-
portion of the assets admitted to be in the hands of this admi-
nistrator 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
ereditor's suit against this administrator be 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 admi-
nistration 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
(b) 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.
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