44 TESSIER v. WYSE.—3 BLAND.

son is held liable, because of his collusion with the administrator
in misapply ing the assets. Elmslie v. M'Aulay, 3 Bro. C. C. 624;
Doran v. Simpson, 4 Ves. 651: Alsager v. Rowley, 6 Ves. 749; Ben-
field v. Solomons, 9 Ves. 86.

It is here stated and admitted, that the administratrix Rachel
Wyse had in her hands all the personal estate of the debtor Wil-
liam Wyse deceased; and that she died without having accounted
for what she admitted she had in her hands on the 29th of June,
1810. * Her personal representative has not been made a
57 party to this suit, nor has it been in any way stated, or
shewn, whether she died intestate or not; whether or not adminis-
tration of her estate has been granted to any one; or whether she
left any personal estate to be administered or not. Yet according
to the general rule, that an executor or administrator of a deceased
executor or administrator of the deceased debtor, who, at the time
of his death, bad assets in his hands, must be made a party to ena-
ble the Court to obtain a complete account of the whole personal
estate of the deceased debtor, so as to do justice to all by having
the personal estate applied in the first place in discharge of the
inheritance; Williams v. Williams, 9 Mod. 299; Holland v. Prior,
7 Cond. Cha. Sep. 22; it is clear, that the executor or administra-
tor of Rachel Wyse should have been brought here as a party, if
it does not appear upon the face of these proceedings, why such a
party has not been, could not be, or need not be called before the
Court. Hammond v. Hammond, 2 Bland, 307.

We have seen that in the case of the death of a debtor, after
judgment, the scire facias against the heirs and terre-tenants must
warn them all to appear; and that in equity the personal repre-
sentative must be made a party with the heirs. But the reason
why all the terre tenants in the one case, and the executor or ad
ministrator in the other, must be brought before the Court, is, as
has been shewn, not to enable the creditor to recover; but that the
defendants may be enabled to obtain the contribution from each
to which they are respectively entitled, or that the personalty may
be first applied in aid of the realty, so that the burthen may be at
once placed where it ought to rest, and no unnecessary injury done
to any one.

This considered as a right, existing only among such defendants
is one which a terre-tenant may decline to take advantage of;
Jefferson v. Morton, 2 Sound, 9, note. 10; or an heir may even ver-
bally disclaim. Clinton v. Hooper, 3 Bro. C. C. 214; S. C. I Ves.
Jun. 188. But where the reason ceases the law ceases; and there-
fore, it has been held, in a suit of this kind, that when two per-
sons ate entitled, one to the personal estate, and the other to the
real, as the Court cannot do justice to him who has the real estate,
without taking an account of the personal in the first place, in re-
lief of the real estate, both of them must be made parties; but