Trustees. The representatives of all trustees guilty of a breach of trust. Committees of idiots and lunatics. Assignees of bankrupts and insolvents. Personal representatives, trust, without bringing the representatives of the other trustees before the Court, and an objection was taken on that ground, the objection was over-ruled, because the plaintiff insisted only upon having an account of the receipts and disbursements of the trustee, whose representative was before the Court, and not of any joint receipts or transactions by him with the other trustees. And so, where a bill was filed by a creditor against the representatives of B. & C. as two trustees of estates conveyed in trust to pay debts, for an account of the produce of the sales and payment of their debts, and the representatives of B. alleged by their answer, that not only C. but D. also were trustees, and that D. had acted in the trust, although they did not know whether he had received any of the produce, Lord Kenyon, M. R., and afterwards Lord Arden M. R., held D. to be an unnecessary party. The reporter of this case adds a query, because at the bar the general opinion was that D.'s representatives ought to have been parties, nor could one creditor suing, waive, on behalf of absent parties in joint interest with himself, the benefit or possible benefit of any part of the trust fund (h). This query seems to be in accordance with the principles laid down in Williams v. Williams (i). There is no doubt, however, that where a bill is against trustees guilty of a breach of trust, the representatives of all those trustees who were implicated in the breach of trust, must be parties, because, in the case of a decree against any of them, they may have a right to call upon the others to contribute. The rule which requires the trustees of property in litigation to be brought before the Court, requires the presence of the committees of the estates of idiots and lunatics in a suit against the idiots or lunatics committed to their care (k); because, by the grant to them of the estates of such idiots or lunatics, they are constituted the trustees of such estates. Upon the same ground, the assignees of bankrupts or insolvents are necessary parties to suits relating to the property of such bankrupts or insolvents. For the same reason, wherever a demand is sought to be (h) Routh v. Kinder, 3 Swan. 144 n; from Lord Colchester's MSS. (i) 9 Mod. 299. (k) Lord Red 24; unte, p. 219. Personal Representatives. in demands against personal estate. satisfied out of the personal estate of a person deceased, it is necessary to make the personal representative a party to the suit. Thus, although, as we have seen, a creditor or legatee may bring a bill against a debtor to the testator's estate upon the ground of collusion between him and the executor (1), yet in all cases of this description, the personal representative must be before the Court. And so, where to a bill for an account of In suits by the estate of a person deceased, and to have the same applied creditors. to satisfy a debt alleged to be due from him to the plaintiff, the defendants pleaded that they were not executors or administrators of the party whose estate was sought to be charged, nor so stated by the bill, and demurred, for that the executors or administrators were the proper parties to contest the debt, who might probably prove that it had been discharged, the Court allowed both the plea and demurrer, but gave the plaintiff leave to amend his bill as he might be advised (m). by specific legatées. Secus where reversioner seeks to set aside a lease against specific legatee. Upon the same principle, the specific legatee of a term suing for the term, must make the executor a party, even though it is alleged in the bill that the executor had assented to the bequest (n). Where, however, a bill was filed by the reversioner against the legatee of a term, praying that the lease might be declared void, and the defendant insisted, that if the lease was set aside, the plaintiff ought to repay the money expended by the testator in the improvement of the premises, the executor of the testator, who had assented to the bequest, was not considered a necessary party to the suit (o). And where an executor had been outlawed, and a witness proved that he had inquired after but could not find him, it was thought to be a full answer to the objection, that he was not a party to a suit which had been instituted by a creditor of the deceased testator against the residuary legatee (p). The rule which requires the executor to be before the Court Executor duin all cases relating to the personal estate of a testator, ex Where executor hawed. has been out rante minore @tate. after executor has attained twentyone, and proved. Personal Re- tends to an executor durante minore ætate, even though the presentatives. actual executor has attained twenty-one, and has obtained probate thereon: thus, where there has been an executor durante minore ætate of the daughter of a testator, and after the daughter attained twenty-one a bill was brought against her without making the executor durante minore ætate a party, although it was insisted that the daughter, being of full age, was complete executrix ab initio, and had the whole right of representation in her; yet it was held, that the representative durante minore ætate was a necessary party, and that for want of him the cause must stand over (q). Secus where he has accounted with the executor. Personal representative must be one appointed in England. Representative abroad coming to England. It is to be observed, however, that if in the last case the daughter had received all the testator's personal estate from the hands of the executor durante minore ætate, upon an account between them, the objection for want of parties would have been overruled. The personal representative required, is one resident in England, and where a testator appointed persons residing in India and Scotland his executors, and the will was not proved in England, but the plaintiff, a creditor, filed a bill against the agent of the executors, to whom money had been remitted, praying an account and payment of the money to the Accountant-general for security, a demurrer, because no personal representative of the testator resident within the jurisdiction of the Court was a party, was allowed (r). It is to be observed, however, that where an executor who has proved a will in India, afterwards comes to England, and a suit is brought against him for an account of his receipts in India, it is not necessary that there should be before the Court a personal representative, appointed in this country; and where A., one of the executors of B., who died in India, proved the will there, and, having possessed assets in India, died in that country, upon which his widow, who was his executrix, proved his will in India, and thereby became the representative, not only of A., but of the original testator, B. upon the widow coming to this country, she was made a party to a suit for the administration of the estate of B., and (4) Glass v. Oxenham, 2 Atk. 121. vide etiam Logan v. Fairlie, 2 S. & S. 284. on an objection being taken that a personal representative of B. appointed by the Ecclesiastical Court here ought also to be a party, the objection was overruled (s). And It seems, that where an administration is disputed in the Ecclesiastical Court, the Court of Chancery will entertain a suit for a receiver to protect the property till the question in the Ecclesiastical Court is decided, although an administration pendente lite might be obtained in the Ecclesiastical Court (t). In such cases the rule requiring a representative to be before the Court, must be dispensed with, there being no person sustaining that character in existence. where a party entitled to administer refuses to take out administration himself, and prevents any one else from doing so, he will not be allowed to object to a suit being proceeded with, because a personal representative is not before the Court. Thus in D'aranda v. Whittingham (u), where the heir of an obligor demurred to a bill by the obligee because the administrator of the obligor was not a party, the demurrer was overruled, because it appeared that he would not administer himself, and had opposed the plaintiff in taking out administration as the principal creditor; and in a case where the person entitled by law to administration did not take it out, but acted as if she had, receiving and paying away the intestate's property, an objection for want of parties, on the ground that there was no administrator before the Court, was overruled (w). Secus where abroad, or are in contempt, or where they have not proved. Where there are several executors or administrators, they All Executors. must all be made parties, even though one of them be an infant (x); but this rule may be dispensed with, if any of them are not amenable to the process of the Court (y), or if they have stood out process to a sequestration; and if an executor has not administered he need not be a party (z). Thus, there were four executors, one of whom alone proved and acted, and a bill was brought against that one, and he in his answer confessed that he had alone proved the will and acted (u) Mos. 84. (s) Anderson v. Caunter, 2 M. & K. 763. For the method of obtaining limited or special administration where the executor is abroad, vide ante, p. 294. (t) Atkinson v. Henshaw, 2 V. & B. 85; Ball v. Oliver, ibid. 96. 64. where (w) Cleland v. Cleland, Prec. Ch. (x) Scurry v. Morse, 9 Mod. 89; Personal Representatives. Executors who have renounced probate. Executor must be a party, although he has released or disclaims. Representatives of a deceased executor necessary. Where a complete account is required; as where a charge is to be raised against real estate; if personal, insufficient. Husband of or administrator. in the executorship, and that the others never intermeddled therein, it was said to be good (a). In that case, however, if the executor who had proved had died, it would not have been sufficient to have brought his executor before the Court, because he would not have represented the original testator; the other executors would still have had the right to prove, even though they had renounced probate (b). The record, therefore, would not have been complete without a new representative of the original testator. Wherever an executor has actually administered, he must be made a party to a suit, although he has released and disclaimed (c). But where a plaintiff filed a bill against one of two executors, and alleged in his bill that he knew not who was the other executor, and prayed that the defendant might discover who he was and where he lived, a demurrer for want of parties was overruled (d). And in the case before referred to, where one of two joint executors was abroad, an account was decreed of his own receipts and payments (e). The rule requiring all the personal representatives of a deceased person to be before the Court, requires that where some of them are dead, and a complete account is sought, the representatives of those who are deceased should be before the Court, unless the plaintiff waives the account of the estate of the deceased representative, which however he is not entitled to do, where a defendant is interested in having it taken, as where a legacy is sought to be raised against the real estate, in which case the heir is entitled to call for a complete account of the personal estate, and to have it applied in case of the inheritance (ƒ). If a bill is filed against a married woman, who is an execufemale executor trix or administratrix, her husband must also be a party, unless he has abjured the realm (g). In Taylor v. Allen (h), however, Lord Hardwicke granted an injunction to restrain a wife, executrix, from getting in the assets, her husband (a) Brown v. Pitman, Gilb. Eq. R. 75; 16 Vin. Ab. tit. Parties, B. Pl. 19. (b) Arnold v. Blencowe, 1 Cox.426. (e) Cowslad v. Cely, Prec. in Ch. 83. (f) Williams v. Williams, 9 Mod. 299. (g) Lord Red. 30. (h) 2 Atk. 213. |