majority">Davison, J.

This suit was instituted by Willis Nelson against William 8- Mart, the administrator, Elizabeth Nelson, the widow, and Catherine J. Nelson and others, the heirs at law of Moses Nelson.

The complaint is as follows: James Nelson, the father of Willis Nelson, died in the year 1818, at Nicholas county, Kentucky, leaving personal estate worth 1,400 dollars, to which Willis, who was then two years old, was entitled as his only heir. Moses Nelson, Willis’s uncle, took possession of said estate, and also took Willis into his family to raise- and educate; but the services which Willis subsequently rendered to Moses, fully paid for his support and education. No letters of administration were ever taken out on the estate of James Nelson; but some time after the death of James, Moses was, by the Court in said county, appointed the guardian of Willis, and as such, falsely represented to said Court that 200 dollars, and no more, had come to his hands. When Willis arrived at age, Moses, by fraudulently representing that 200 dollars was all that had come to his hands, induced him, Willis, to receive that sum with interest, for which he gave Moses, as his guardian, a receipt in full. The fraud of Moses was not discovered until shortly before the commencement of this suit; and Mart, his administrator, though specially requested to do so, has refused to settle the claim, &c.

The widow and heirs demurred to the complaint, and for cause alleged — 1. The facts stated are insufficient, &c. 2. They are- not liable to be sued as heirs of Moses Nelson, deceased, unless assets have come to them from their ancestors. 3. They cannot be joined in the action with the administrator. And the administrator demurred as follows: 1. Misjoinder of defendants. 2. That he is not liable to be sued in this form, for debts due *295from the estate. The Court sustained the demurrers. And the plaintiff having declined in any manner to amend the complaint, judgment was given against him.

The appellant in his brief says that the decision of the Court was based upon the ground “ that there was a misjoinder of defendants; that the suit should have been alone against the administrator; and that the widow and heirs were not properly made parties.” Is this position tenable?

The code provides that, “Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete examination or settlement of the questions involved.” 2 R. S. p. 31. This is in effect the re-enactment of a rule in equity pleading; and it simply remains for us to inquire whether that rule, in view of its settled construction, when applied to the case at bar, sustains the action of the Common Pleas. Mr. Story says that, “ In all bills by creditors against the executor or administrator, the persons entitled to the personal assets of a deceased debtor, or testator, after payment of debts or legacies, are not deemed necessary parties, although interested, to contest the demands of creditors,” &c. Eq. PI. s. 140, 5th ed. He also says, “ There are certain persons whose representative character is derived from the law. The most familiar instance is that of executors and administrators in respect of the personal estate of their - testator or intestate. Whenever a suit is instituted which affects that personal estate, all the legatees have precisely that kind of interest which has been specified in the general rule, but they are unnecessary parties, inasmuch as by law their interests are, protected; they themselves may be said to be represented in the person of the executor or administrator. It would be very inconvenient to bring 'them all, in their own persons, before the Court, so they are allowed to appear by their representatives; thus an adequate protection is provided for their interests, and *296the spirit of the general rule is adopted, although the letter of it is, for the sake of convenience, evaded.” Eq. PI. p. 187, 5th ed. (1)

We perceive no reason why the exposition just quoted should not be applied to -the rule enacted by our code. It is true, as contended, a judgment in the present case for the plaintiff, must be paid out of property which would otherwise go to the widow and heirs; hence, they would seem to be interested in the result of the controversy. But the subject-matter of this suit is simply a claim against the decedent’s estate, and the administrator who represents their interest in the estate is in duty bound, to make all necessary defense against the claimant’s demand. 2 R. S. p. 262. His defense is their defense. We are not inclined to adopt such a construction of the rule as will allow each creditor of an estate, in the prosecution of his claim against its administrator, to join as defendants the widow and heirs.

The appellant argues thus: “ The legislature intended that all persons in whom is vested the real interest, should be parties. It is provided that all persons except parties shall be competent to testify. And certainly it would be most unwise that the defendants in this case other than the administrator should be full witnesses-;— yet they would be, if the demurrer is sustained.” The force of this reasoning is not perceivable. The law renders incompetent as a witness, “ a party to an action or the person for whose use it is brought.” To us, it is very plain that the widow and heirs are neither necessary, nor even proper parties to a suit like the present; and in no sense was the action brought for their use. Nor does the assumption that they may be witnesses^ furnish any reason for making them parties. We think however, that the demurrer filed by the administrator, should have been overruled. As to him, the suit was properly instituted, and against him it should be allowed to proceed.

Per Curiam,

The judgment upon his demurrer is *297therefore reversed. In all else the judgment is affirmed. Costs against the appellant in this Court. Cause remanded, &c. /

J. A. Matson, for the appellant.

This language is not found in Story’s text. It is from Calvert on Parties in Equity, pp. 20, 21. See Story’s Eq. PI. s. 140, note 5.

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