TESSIER v, WYSE.—3 BLAND. 43

for that purpose; which was decreed accordingly; thus distinctly
giving the Court to understand, in that suit, that the mother and
natural guardian of these infants had had no hesitation in apply-
ing the personal assets, in her hands as administratrix, to their
maintenance and education. And it further appears, that this
plaintiff Tessier, had pressed for the payment of his debt, by suing
and obtaining judgments upon his collateral security, which judg-
ments have, by accident, been left wholly ineffectual. Hence,
although it is not directly shewn how the children were maintained:
yet on looking to the nature of the estate as described in the in-
ventories and proceedings, and to the probable cost of maintaining
and educating them for about eight years, the irresistible presump-
tion is, that the amount of the difference between the assets shewn
to have been in the hands of Rachel Wyse. on the 29th of June,
1810, and *the assets shewn to be in the hands of Joseph
Allender, on the 23rd of January, 1824, had been consumed 56
chiefly or altogether by these very heirs and next of kin of the
deceased, who are now here as defendants resisting the payment
of this claim from the real estate in their hands. Allender v.
Riston, 2 G. & J. 86.

A creditor cannot be held bound to guarantee the faithful and
proper administration of his deceased debtor's estate; and there-
fore where, without any fault or connivance of his, the executor or
administrator wastes the personalty, the entire residue of the estate
real and personal must beheld as absolutely liable to such creditor,
in all respects, as if no such waste had been committed, or as if
the estate had been justly applied in a due course of administra-
tion. Hardwick v. Mynd. 1 Anstr. 112. But here, under these cir
cumstances, a Court of equity cannot, certainly, tolerate such a
defence as this, that there was originally a sufficiency of personal
estate to pa;s all the debts of the deceased, coming, as it does,
from defendants who are both heirs and next of kin, and for whose
maintenance and education the personal estate had been thus re-
duced, so as to exclude a creditor from the leal estate in their
hands, upon the ground of their having been originally a sufficiency
of personal estate to pay the debt. Because if there had been, in
contemplation of law, a waste of the personal estate, it was amis-
application of it in which they have largely participated; and be-
cause, if there had been any negligence in the plaintiff Tessier, it
was a sort of indulgence by which they have been greatly bene-
fited. Such a defence comes with an exceedingly ill grace from
those of these defendants who are the heirs and next of kin of the
deceased; and therefore cannot, under the circumstances in which
they stand, be allowed to avail them, or the defendant Riston who
claims under them, in any way whatever; Williams v. Williams, 9
Mod. 300; Daniel v. Skipwith, 2 Bro. C. C. 155; but the real estate
in their hands must be held liable, as in cases where a third per-