delivered the opinion of the Court:
The demurrer to the bill ought to have been allowed, and the bill dismissed. The complainant files his bill as the administrator, with the will annexed, of Benj. P. Byram, deceased, and there is no other complainant to to the bill. The will names no executor, and disposes of the property as the bill alleges. If the suit had been brought in the name of the devisees under the will, for the purpose of cancelling and annulling a contract made by the testator, showing that the contract was procured by misrepresentations, undue influence, for a grossly inadequate consideration, &c. It is easy to peceive how such a bill might be e'ntertained by a court of chancery; or if thé administrator with the will annexed had filed his bill, affirming the contract, and asking the court to enforce the lien upon the lands for the purchase money yet due, or in some way showing that he had a right in equity to have a decree rendered against the defendant, Patton, for money due by virtue of the contract, then he might be properly in a court of equity in his character as personal representative. But a personal representative cannot, as the only complainant in a bill like the one filed, for the purpose of rescinding and annulling a contract, under the circumstances disclosed in this bill, be entertained in a *661chancery court. For these reasons the decree of the. circuit court of Mason county, rendered in this cause on J 7 the 17th day oi October, 1<S73, is reversed, with costs to the appellant, Robert Patton, against the said David Jones, administrator with the will annexed of Benj. P. Byram, deceased, to be paid out of the assets of the estate of the testator in his hands.
And this court proceeding to render such a decree as the circuit court of Mason county should have rendered, it is adjuged, ordered and decreed that the demurrer to the complainant's bill be allowed, and it appearing from the record that the plaintiff could not so amend his bill, as to entitle him to relief in a court of equity, it is further adjudged, ordered and decreed that the plaintiff's bill be dismissed at his costs, to be paid out of assets of the testator in his hands to be administered.
But the dismissal of said bill is without prejudice to any suit said administrator may hereafter be advised to bring affirming said contract, and enforcing any lien that may exist thereunder for purchase money, or to have ah account for said purchase money, or other moneys received under said contract or power oi attorney, and without prejudice to any suit the devisees under the will oi said Bvram, deceased, or his legal heirs, or any of them, may be advised to bring to cancel and annul said contract, or for an account for any moneys received under said contract or power of attorney.
Decree Reversed and bill dismissed.