they are equally interested in disputing the latter will as the heir (m). Persons claiming under incon. sistent titles. to have title-deeds of de vised estates delivered up to With respect to the practice above alluded to, of making the heir at law a party in suits relating to real estates by devisees and persons interested under a will, the necessity of adhering to it, where it is practicable, has been recognised in a great many cases. Therefore, where a motion was made on the part of a devisee to have some title-deeds which had been brought into Court delivered up to him, the Court refused to grant it, because the heir was not a party, nor had he notice, nor was the will established against him, though a recovery had been suffered under it. And so in a bill by creditors, to compel a sale of lands devised for the payment of debts, it is necessary that the heir should be a party, in order that the devised for paywill may be established against him, as otherwise the estate might not sell for so much money. a devisee. -to have the will established. -to sell lands ment of debts. tute of fraudulent devises. And even where the suit is brought against the devisee, under staunder the statute of fraudulent devises (n), the heir at law is necessary party. This, however, appears to have been decided merely upon the ground that the Act of Parliament which makes the devised estate assets, requires the heir to be made a defendant in an action at law, and a bill in equity in such case is no other than an action at law (o). And in Gawler v. Wade (p), Lord Cowper is reported to have said, that the rule is otherwise where there is no heir; and perhaps it might be otherwise too if the bill had charged that the plaintiff had made inquiry, and could discover no heir. It seems, from the case of Warren v. Stawell, above referred to, that where a devisee is a bankrupt, the bill may be brought against the assignee and the heir at law, and that the bankrupt devisee need not be a party. But although the heir at law is a necessary party to suits instituted for the purpose of making estates which have been (m) Lord Red. 139. Lord Redesdale appears to think that in such cases the persons claiming under the prior will may, if their right is insisted upon, be made parties, for the purpose of quieting the title and of protecting those who may act under the orders of the Court in executing the (n) 3 & 4 W. & M. c. 14. where devisee a bankrupt. Heir not required where lands are given by deed to pay debts. Persons claim ing under inconsistent titles. -where a testator has been dead several years. Absence of heir of devisor not a ground of exception to title; but it is a ground of ob. jection to the conveyance. In what cases Heir not bound unless party. devised subject to the payment of debts, he is not a necessary party to suits instituted by creditors claiming under a deed whereby estates have been conveyed to trustees to sell for payment of debts, unless he is entitled to the surplus of the money arising from the sale. Where it appeared that a trustee had been dead several years, and that the freehold lands had been quietly enjoyed under the will, a sale was declared without the heir being a party (p). It seems that in the case of a purchase under a decree made upon a bill of this description, the circumstances of the heir of the testator not having been before the Court when the decree was pronounced, although a good objection at the hearing, is not a ground of exception to the title; though if he be not made a party to the conveyance, it may be a good ground of objection to the conveyance when settled by the Master (9). Although it was formerly the practice, where the heir at law was abroad, or could not be found, to direct the execution of the trusts without declaring the will well proved (r), yet it seems that now the Court will, upon due proof of the execution of the will, and of the sanity of the testator, declare the will well proved, notwithstanding the absence of the heir, if the fact is charged in the bill and proved; because directing the devised estate to be sold, is in effect establishing the will, and executing the trusts; and the heir at law, when he appears, must get rid of it as he can (s). And so the Court will declare the will proved upon hearing the evidence, where the heir at law, being a party, makes default. The evidence, however, used upon that occasion will be no evidence against the heir, if he should afterwards set up a claim; nor can the Court by such a decree, in any manner ensure the title under it against his rights (t). It is to be Attorney-gene- observed here, that if no heir at law can be found, the Attor If no heir, ral. (p) Harris v. Ingledew, 3 P.Wms. 94. (1) Wakeman v. The Duchess of Rutland, 3 Ves. 233. (r) French v. Baron, 1 Dick. 138; 2 Atk. 120, S. C.; Stokes v. Taylor, 1 Dick. 349; Cator v. Butler, 2 Dick. 438; Braithwaite v. Robinson, ibid. n. (s) Banister v. Way, 2 Dick. 599; Vide acc. Williams t. Whingates, 2 Bro. C. C. 399. (t) Lord Red. 140. ney-general is usually made a party to a bill for carrying the trusts of a devise of real estates into execution, on the supposition that the escheat is in the Crown, if the will set up by the bill should be subject to impeachment. If any person should claim the escheat against the Crown, that person may be a necessary party (u). The rule which has been before noticed, that persons claiming under titles which are inconsistent with that of the plaintiff, should not be made parties to a suit, even though they are in a situation to molest the defendant in the event of the plaintiff being unsuccessful in establishing his claim, is equally applicable to prohibit their being made parties as coplaintiffs or as defendants. Thus in the case of the Attorneygeneral v. Tarrington (x), where an information and bill was exhibited in the Exchequer by the King's Attorney-general, and the Queen-dowager and her trustees as plaintiffs, against the lessees of the Queen, of certain lands which had been granted to her by the Crown for her jointure, in respect of the breach of the covenants in their leases, it was held that the King and Queen-dowager could not join, because their interests were several and so in the case of Lord Cholmondeley v. Lord Clinton (y), where a bill was filed by two persons, one claiming as devisee, and the other as heir at law; and the question was, whether they could maintain a suit to redeem a mortgage, on the allegation "that questions having arisen as to which of them was entitled to the estate, they had agreed to divide the estate between them," Sir Thomas Plumer strongly expressed his opinion that the Court could not proceed on a bill so framed. In a subsequent case between the same parties, the title of the plaintiff was stated in the same way as in the first, and Lord Eldon, though he allowed the demurrer which was put in to the bill upon other grounds, expressed a very strong opinion, that two persons claiming the same thing by different titles, but averring that it is in one or the other of them, and each contending that it was in himself, could not join in a suit as co-plaintiffs. His Lordship said, "that the difficulty of maintaining a suit where there are two plaintiffs, (y) Jac. & W. 135. (u) Lord Red. 140. (x) Hardres, 219. Persons claim ing under inconsistent titles. Settlor and purchaser, in suit to avoid a settlement under the 27 Eliz. c. 4. Creditors of person deceased! may join in a suit. A. and B., and each asserting the title to be in him, is this, that if the Court decides that A. is entitled, and the defendants do not complain, how is B. as a co-plaintiff to appeal from that decree?" In a recent case before the Master of the Rolls (Sir C. C. Pepys), where a bill had been filed by the settlor in a voluntary settlement, for the purpose of avoiding the settlement, in which another person claiming as a purchaser, under the 27 Eliz. c. 4, against the parties entitled under the voluntary settlement, was joined as a co-plaintiff; his Honor held, that as the settlement was of personal property it was not within the statute, and that, consequently, the purchaser not having the protection of the statute, could not have a better title than the settlor from whom he purchased, but that if he had shown a good title in himself, he could have had no relief in that suit, having associated himself as a co-plaintiff with the settlor; it having been in several late cases decided, that under such circumstances, no decree can be made, although the plaintiff might, in a suit in which he was sole plaintiff, have been entitled to relief (z). The rule, that persons claiming under different titles cannot be joined as plaintiffs in the same suit, does not apply to cases where their titles, though distinct, are not inconsistent with each other. Thus, all the creditors of a deceased debtor, although they claim under distinct titles, may be joined as co-plaintiffs in the same suit, to administer the assets of the debtor, although it is not necessary that they should be so joined, as one creditor may sue for his debt against the personal estate, without bringing the other creditors before the Court (a). The joining, however, of several creditors in the same suit, although it might save the expense of self and others. several suits by different creditors, might nevertheless, where the creditors are numerous, be productive of great inconvenience and delay by reason of the danger which would exist of continued abatements. Courts of Equity have therefore adopted a practice, which at the same time that it saves the expense of several suits against the same estate, obviates the risk and inconvenience to be apprehended from joining a great One creditor may sue on behalf of him (2) Bill v. Cuerton, 2 M. & K. 503. (a) Anon. 3 Atk. 572; Peacock v. Monk, 1 Ves. 127. number of individuals as plaintiffs, by allowing one or more of such individuals to file a bill on behalf of themselves and the other creditors upon the same estate, for an account and application of the estate of a deceased debtor, in which case the decree being made applicable to all the creditors, the others may come in under it and obtain satisfaction for their demands as well as the plaintiffs in the suit; and if they decline to do so, they will be excluded the benefit of the decree and will yet be considered bound by acts done under its authority (b). It is matter rather of convenience than indulgence, to permit such a suit by a few on behalf of all the creditors, as it tends to prevent several suits by several creditors, which might be highly inconvenient in the administration of assets, as well as burthensome to the fund to be administered; for if a bill be brought by a single creditor for his own debt, he may, as at law, gain a preference by the judgment in his favour over the other creditors in the same degree, who may not have used equal diligence (c). The same principle applies where the demand is against the real as well as the personal assets (d), because, strictly speaking, where an estate is liable to several incumbrances, or specialty debts, one incumbrancer, or specialty creditor, cannot sue without bringing the others before the Court, which, when the creditors are numerous, might be attended with great inconvenience and expense (e), and it has been extended (b) Lord Red. 135. (c) Ibid. Vide Attorney-general v. Cornthwaite, 2 Cox. 45; where it was admitted at the bar that where a single creditor files a bill for the payment of his own debt only, the Court does not direct a general account of the testator's debts, but only an account of the personal estate and of that particular debt, which is ordered to be paid in a course of administration; and all debts of a higher or equal nature may be paid by the executor, and allowed him in his discharge. Vide etiam, Gray v. Chiswell, 9 Ves. 123. (d) Leigh v. Thomas, 2 Ves. 313. (e) Although in this case one incumbrancer cannot sue without making the rest parties, yet it has been held that this is cured by a decree In what cases one may sue on behalf of him self and others. As well in the case of real as of personal estate. |