Of the necessary parties to suits. nearest of kin of the undisposed surplus. A bill, therefore, in equity, is the mode of compelling a discovery of assets, as well as an account; and also of calling for a distribution, under the statute, of an intestate's personal estate". And if, without a reasonable cause assigned, an executor detain the effects in his hands for a length of time, or use them in trade, or even keep them idle and unproductive in his hands, he will be called upon for interest in a court of equity'. In every case where an executor is made to pay interest for a breach of trust, he is liable, as of course, to costs'; à fortiori, where he is convicted of conduct directly and palpably fraudulent; even though the will may have directed his expenses to be paid out of the estate". But where an executor fails in a suit, instituted merely for obtaining the opinion and directions of the court, he will not be subjected to costs'. It is a general rule in courts of equity, that all persons are to be made parties, who are either legally or beneficially interested in the subject matter, and result of the suit. All trustees, therefore, and all executors and administrators, who are considered as trustees in courts of equity, must be made parties to every suit that concerns the subject matter of their trust; as where the suit regards the payment of a legacy, or an annuity, marshalling assets, the payment of debts, or tition; but there is no regular way of calling an executor to account, but by filing a bill. distributive shares". So an executor appointed only durante minore ætate, if he have possessed himself of any part of the assets, must be a party to any suit instituted respecting them. Though an executor before probate, may file his bill, and it is sufficient, if he afterwards takes out probate at any time before the hearing, yet in a bill for an account of the personal estate of the deceased', though the person who has a right to administer is made a party, this is not sufficient without an actual administration taken out". But if a sufficient reason be stated in the bill for not bringing an executor into court, as, if he be resident out of the jurisdiction of the court, or if the representation be charged to be in litigation in the ecclesiastical court, or the plaintiff do not know who he is, it is not an objection that the executor is not a party. Again, in the case of a mortgage in fee, a bill to redeem must make the executor of the mortgagee a party to the suit, as well as the heir at law, because the money is to return to the same fund out of which it came: but in a bill to foreclose the heir of the mortgagor, it is not necessary to make the personal representative a party to the suit; and if a tenant in fee mortgage, by creating a term, the personal representative ought not to be a party to a bill of foreclosure: for though the heir is entitled to have the personal estate applied in exoneration of the real, yet he must enforce that right by filing his bill; and so if the heir pays out of the assets descended the specialty debt of the ances "Rep. Temp. Finch. 82. 3 P. Wms. 349. but see Prec. in Ch. 83. 3 P. Wms. 334. note A. 3 P. Wms. 352. 1 Vern. 95. tor, it belongs to him to exhibit his bill against the personal representative, to compel the application of the personal estate, in exoneration of the real, but this is not the concern of the creditor. The above-mentioned rule, however, is not without some exceptions; as where creditors are seeking an account of the estate of their deceased debtor, for the payment of their demands, a few of the whole number are permitted to maintain the suit, in behalf of the rest, who are allowed to come in under the decree. So also, one legatee may sue without the others, who may come in under the decree; yet where the residue of the personal estate was devised to three, it has been held that one could not sue for his part, without joining the others. And so where the residue was limited to one for life, and upon his decease to other persons, remainders over, it was held that all persons interested under the limitations, must be parties to a bill for the payments. But one of the next of kin of an intestate may sue for his distributive share, and the master will be directed to enquire, and state to the court, who are the next of kin of the intestate, and they may come in under the decree ; though if it appears by the bill, that the plaintiff knows who are the other next of kin, it seems he must make them parties to the suit. SECTION XIII. Of the effect of Promises by Executors and Administrators, to satisfy Claims upon the Estate of the Testator or Intestate. THE first branch of the 4th section of the statute of frauds 29 Car. 2. c. 3. enacts that no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. the bring the party within the pro tection of this provi no sion of the pro- must have were executor or statute, he It seems proper to premise, that to bring the party That to within the protection of this provision of the statute, he must be actually invested with the office, at time of making the promise: he can receive benefit from it, by acquiring the office after the mise has been made by him; for which, if it not clear enough upon the words of the statute, the trator, case of Tomlinson v. Gill is an authority. As an made the immediate executor derives all his title from the will promise. of the person he represents, and the interest and of • Ambl. 330. been actual adminis when he The statute has made fice are completely vested in him, at the instant of the testator's death, his promise is prevented by this statute from binding him personally, though he makes it before probate, which is not the origin but the authentication of his title. But an administrator derives his office and interest from the ordinary, and therefore, a verbal promise by a person, in virtue of his expectation of representing an intestate, is not invalidated by this clause of the 4th section; and though the grant of administration has relation to the time of the intestate's death", such relation cannot, it is presumed, affect the application of the statute. The statute of frauds and perjuries, in superadding the necessity of writing, to give an actionable effect to the promises therein specified, has given no positive virtue to the writing itself, so as to make it a substitute for the consideration necessary to support the promise according to the ancient maxims of our municipal law. The judgment of C. B. Skinner in the House of Lords, in the case of Rann v. Hughes, is clear upon this point, which arose upon a promise in writing, made by executors, and wherein the Chief Baron, in very clear terms, made it appear, that this branch of the statute, being made for the relief of personal representatives, did certainly not intend to charge them further than by common law they were chargeable. To that judgment, therefore, the reader is referred as a satisfactory argument for this construction of the statute. To the comments of the Chief Baron it may be added, that there not only exists as much necessity since 2 Roll. Abr. 554. 7 T. R. 350. N. (a.) 7 Bro. P. C. 556. S. C. |