delivered the opinion of the Court.
Higdon sued Gore as administrator of Wm. Gibson, deceased, in the county of Nelson, upon a note averred to have been executed by the said Wm. Gibson in his lifetime. Two of the heirs of Gibson appeared in court, and presented and swore to a plea of non est factum, and prayed the court to have all the heirs of Gibson made defendants to the suit, stating in an affidavit that Gore, the administrator, was not familiar with the hand-writing of the decedent, and, on that account, would not swear to a plea of non est factum, or give his belief whether the note was genuine or not, as he knew nothing of the transaction, and refused to defend, and thereupon all the heirs moved the court, for the reason set forth in said plea and affidavit, to allow them to be made defendants to the suit, and to file said plea, and to defend the suit. But the court overruled the motion, and rendered judgment upon the note against the administrator.
Title 3rd, chapter 1st, section 35th of the Code of Practice, contains this provision: “Any person may be made a defendant, who has, or claims an interest in the controversy, adverse to the plaintiff, or who is *209a necessary party to a complete determination and settlement of the question involved in the action.”
2. In a suit on a note against an administrator, two of the heirs of the intestate presented a plea of non est factum, and swore to it, and an affidavit, stating that the administrator was not acquainted with the signature of the intestate, and for that reason would not swear to the plea of non est factum, and they asked that the heirs be made parties and permitted to defend. Held— that they should be made parties and allowed to defend.We do not suppose that this provision was intended to leave it altogether to the discretion of the plaintiff whether such person as is mentioned in said section should be made a defendant or not, but that by it authority was conferred upon the courts to cause such person to be made a defendant.
The legislature, deeming it good policy, enacted in 1846, that any heir, devisee, or distributee, who made oath that the executor or administrator of a decedent was prosecuting or defending a suit in bad faith, might be permitted to prosecute or defend the same. And this policy, we presume, was intended to be preserved by the Code. There is no intimation, it is true, that the administrator, in this case, refused in bad faith to defend the suit, nor do we suppose there was the slightest ground for any such intimation. But the mischief to be remedied exists as well in the state of facts made out in the affidavit of the heirs, as if it had been charged that the administrator refused to defend in lad faith. And the above provision enlarges the privilege of persons not made defendants of becoming so.
We think that the court, upon the affidavit filed by the heirs, should, in the exercise of a sound discretion, have required them to be made defendants to the suit, and have permitted the plea to be filed.
Wherefore, the judgment is reversed, and the cause remanded, that the heirs of William Gibson, unless they shall decline to do so, be made defendants to the suit, and be allowed to defend.