1. The demurrer to the amended second count was rightly sustained. If we assume, in favor of the plaintiffs, that they are the persons named in the fourth clause of the will, or their representatives, the gift to them after the death of the widow of the testator is not a joint gift.
In Whiting v. Cook, 8 Allen, 63, where a testator bequeathed to his daughter a sum of money, with directions that the same should remain in the hands of his executor, to be paid to his daughter from time to time, and further provided that, if she should die before the whole sum was paid to her, the portion remaining unpaid should be divided equally among her children, it was held, on the death of the daughter, that her children could not sue the executor jointly. See also Smith v. Haynes, 111 Mass. 346. Ellison v. New Bedford Five Cents Savings Bank, 130 Mass. 48.
2. There is another difficulty in the plaintiffs’ case. The action should have been brought by the administrator de bonis non with the will annexed of the estate of the testator. Law*398rence v. Wright, 23 Pick. 128. Buttrick v. King, 7 Met. 20. Varnum v. Meserve, 8 Allen, 158. Sewall v. Patch, 132 Mass. 326. Minot v. Norcross, 143 Mass. 326.
The cases of Hall v. Burgess, 5 Gray, 12, and of Rich v. Rich, 113 Mass. 197, are clearly distinguishable. In Hall v. Burgess, a testator left property to his wife so long as she remained his widow, with remainder over to his son. The widow married again, and the son, by an instrument in writing, gave her certain chattels, constituting a portion of the personal property, for her life. On her death, the son brought an action against the second husband, who had taken possession of the chattels; and it was held that the action could be maintained on the ground that the action was “ not for the recovery of the property of a person deceased, found in the possession of the defendant at his death, but of property which the defendant received under a written contract of gift from the plaintiff.”
In Rich v. Rich, the plaintiffs were not devisees but heirs, who were entitled to a reversion in land. The action was against the administrator of the life tenant to recover the proceeds of the sale of the land. It was decided in favor of the plaintiffs on the ground that the sale was the concurrent act of the life tenant and the heirs at law, and that the administrator was liable on the promise of the life tenant to pay the purchase money to them upon her death.
3. After the action was begun, the administrator de bonis non with the will annexed of the estate of the testator filed a motion for leave to prosecute the action in his name, as administrator, for the benefit of the legatees. This motion was overruled; and an appeal was taken.
If we assume, in favor of the plaintiffs, that, under the Pub. Sts. c. 167, § 42, it was within the power of the court below to allow the amendment, (see Silver v. Jordan, 139 Mass. 280, 282,) it was within its discretion to deny the motion. Payson v. Macomber, 3 Allen, 69, 70. Tucker v. White, 5 Allen, 322. Smith v. Whiting, 100 Mass. 122. George v. Reed, 101 Mass. 378. Winch v. Hosmer, 122 Mass. 438. Buckland v. Green, 133 Mass. 421.
Judgment for the defendants affirmed.