The complainant is a daughter and one of the residuary legatees of doctor Caleb Halsted, late of Union, in the county of Essex. The bill is filed against Isaac Andruss, surviving executor named in the last will and testament of Caleb Halsted, to recover her share of said estate, according *73to the sum established by a decree of the orphan’s court of the said county of Essex. The testator made three executors to his will; Job S. Halsted, esquire, of the county of Sussex, Luther Goble, who was the husband of the complainant, and Isaac Andruss, the defendant. The two last, however, alone proved the will. The bill charges, that Luther Goble and Isaac Andruss settled their accounts in the orphan’s court of the county of Essex, on the 17th day of April, 1832, having in their hands the net amount of eleven hundred and four dollars and ninety-four cents for distribution among the residuary legatees, one half of which is claimed by the complainant. The bill is not for a general account, but to recover one half of the amount ascertained by the said decree. The bill then goes on to say, that Luther Goble took only a formal part in the settlement of the testator’s estate, and that all the monies belonging to said estate were received by Isaac Andruss, no part thereof ever having been received by Luther Goble. That Isaac Andruss retained all the commissions allowed on such settlement, and was in truth and in fact the active man in the whole business; and that the residue of the aforesaid testator’s estate is now in the hands of the defendant, Isaac Andruss. The bill further states, that Luther Goble is dead, never having received, or in any way reduced into his possession, the share of the residue of said estate sought (,o be recovered by the complainant iu this action.
To this bill the defendant, Isaac Andruss, has put in a demurrer for want of parties, insisting that the personal representatives of Luther Goble are necessary parties; and whether that be so or not, is the only question now to be considered.
It is not the point of this case, whether the complainant might not have joined such representatives as parties with propriety, under certain charges, of their having assets in their hands, or the insolvency of the present defendant, or fraud or collusion; bul whether, in a case like the present, where the surviving executor is charged with having all the assets of the estate in his hands, and no pretence of insolvency or fraud, the complainant is bound to make the representatives of a co-executor parties. *74Why should they be made parties ? is not the surviving executor the party directly liable for legacies, both at law and in this court ? Is he not bound and entitled to possess himself, as survivor,: of all the assets of his testator, and to settle up and pay all claims against his estate 1 If so, and it further appear, as in the present case, that he has been the active man, and has now all the assets in his hands, I can see no good reason for making the representatives of his co-executor parties. No decree could be made against them if they were made parties, in a case standing as the present one does.
The principle on this subject I take to be this. A complainant in a suit for the mere purpose of recovering a legaey, is not bound to make the representatives of a deceased co-executor parties, when he expressly charges that all the assets of the testator are in the hands of the surviving executor: but such representatives are proper parties, whenever such co-executor is charged with having assets, or when fraud or collusion is charged between the executors, or in a case of insolvency; and upon the same principle, debtors to the testator may be made parties, to reach assets in their hands. This is a privilege given a complainant in this court, to go beyond the party legally bound (who is the surviving executor) to reach assets in the hands of other persons, out of which his debt ought to be paid. But if such persons have no assets, and there be no other special ground assigned, they are not proper parties. Newland v. Champion, 1 Vesey, sen. 105; Alsager v. Rowley, 6 Vesey, jun. 749; Glass v. Oxenham, 2 Atkyns, 121.; Fotherby v. Pate, 3 Atkyns, 605; 9 Cond. Eng. Ch. Rep. 438.
I am furnished by the counsel of the defendant with two cases which, as they were mainly relied on in support of the demurrer, I wish to notice particularly.
The first is the case of Williams v. Williams, in 9 Modern, 299, That was a suit for legacies to the children of the testator, which they claimed to have paid first out of the personal estate, and if that was not sufficient, out of the real estate. Margaret the widow, and William the son of the testator, were the exeG*75utors named in the will, both of whom proved the will, but William the son intermeddled most with the estate, and then died. The hill sought a general account of the personal estate of the testator, and made only the surviving executor, and the heirs at law of the deceased co-exeeutor, parties. It was held, that the personal representatives of the deceased executor must be made parties. The reason given by lord Uardwicke in his opinion, distinguishes that case from the present. Payment was to be made out of the real estate, only in the event of the personal estate not being sufficient; it was therefore necessary that there should be an account of the personal estate in the hands of the co-executor, so that the heirs could judge whether the real estate was rightly called on, and for that purpose the representatives of the deceased executor were made parties. By that case it also appeared, that the deceased executor was the one who had principally intermeddled with the estate. But suppose, as in the case now before the court, the bill had charged that the deceased executor was a formal executor, and had no part of the estate in his hands, would his representatives then have been necessary parties 1 Clearly not, from the very reasoning of the chancellor. And he goes on further to say, that where you seek a complete account, you are entitled to have the representatives of the deceased executor before the court; for “ each executor may possess some distinct part of the personal estate.” The whole reason given for making them parties, is having assets in their hands, which in the present case is expressly denied.
The next case cited, is that of Holland v. Prior, from 8 Condensed English Chancery Reports, 487. This is a very long opinion, and reviews most of the cases on the subject. The bill was filed against the executor of the administratrix with the will annexed, and against the administrator de bonis non of the original testator. And the question was, whether any other party could be made defendant than the administrator de bonis non. The court decided that they might, upon the ground that the first administrator had received assets, and the bill prayed that her executor might account for and pay over the amount of such *76assets. The chancellor states the case in his own language, thus : — u The question is, therefore, whether the executor of an administrator, who had received assets of the person represented by her, can be made a party to a suit instituted by the creditors of that person.” These assets being, or not being, in the hands of the deceased representative, make the difference in the cases now cited and that before the court. Besides, it will be found in this last case, that the court is furnishing the complainant with an excuse for having made these parties, and presupposes throughout that they had assets in their hands.
The case, as now presented, stands upon a demurrer to the bill. Every charge, therefore, which is there well pleaded, is admitted. The charge, that all the assets are in the hands of the defendant, i consider material, and well pleaded. But it is insisted that there is a difference in this case from those cited from the books, inasmuch as here was a decree of the orphan’s court establishing a joint liability in the executors. I cannot think this decree makes the liability any more joint than it was before. They were jointly liable before, as well as since the decree. The decree only ascertained the amount due, leaving the liability the same as before, joint, and leaving wholly undetermined and open, as between the parties themselves, what part of the estate each executor had. It wou.ld be a dangerous doctrine, that a settlement by two executors in the orphan’s court, and a decree establishing the amount in their hands, should, as between themselves, be conclusive that each at the time had half of the estate. Such decree, in my opinion, has no such effect. It ascertains the amount-in their joint hands, for which they are jointly liable, but open to be settled as to the amount each has in his hands at the time. This, therefore, cannot vary the question.
There is a charge in the bill, that the complainant had receivad one hundred and forty dollars from the defendant, Isaac Andruss, in, the life-time of her husband, on account of her legacy, and it is insisted that this is a reason for making the representatives of her husband a party. I cannot see how this can be, for at all events this complainant agrees to give the defendant a ere*77dlt for so much paid her on account of her legacy, and if so, that is enough for all the purposes of this suit.
It was further pressed, that this defendant was desirous of bringing all parties before the court, that they might be bound by the decree, and in case of payment, that he might be protected and indemnified; also that the accounts of the two executors might be settled in this action. These are all matters fair in argument,. and I make no question are insisted on from a belief that they are important to the defendant’s interests. From the view which I take of the question, I cannot say the complainant is bound, according to authority and the settled practice of the court, to make the parties to his suit now asked for, upon the bill as now framed, however great a convenience it might be for the defendant.
The demurrer, therefore, must be overruled, with costs, and the defendant put to his answer.
Demurrer overruled.