#### JOHN A. FLEMING *and others against*JAMES McKESSON, *Adm’r., and*WM. F. McKESSON.

Generally, the next of kin cannot sue the debtor of the intestate, but where an administrator is manifestly under the influence of the debtor, and that influence has been collusively exercised to the injury of the next of kin, they may, in equity, have an account against the debtor.

Appeal from the Court of Equity of McDowell county.

The bill of the plaintiffs alleges that they are the only children and next of kin of Samuel Fleming, who died in the year 1851, intestate, leaving the plaintiffs infants of tender years, his only children; that the deceased, at the time of his death, owned a large personal estate, consisting of slaves, stock, grain, furniture, wagons, carriages, and debts due him by judgments, bonds, notes, accounts, &c.; that a few days after his death, the defendant James McKesson obtained special letters of administration on the estate of said Samuel, and in company with his son, the defendant William F. McKesson, and in the absence of all other persons, went to the late residence of the intestate, and took into their possession all his private papers, among which were three or more notes on the defendant William F. McKesson, amounting in the aggregate to over $6000, and receipts for payments made by him to said defendant, and obligations cancelled in relation to other business transactions between them ; that under these special letters, the defendant sold many articles, of property of great *317value, the amount of which the plaintiffs are ignorant, and upon the expiration of his said letters, to wit, at-Term 1852, of the county of McDowell, the defendant Janies obtained general letters of administration on the said estate; that under these general letters, he proceeded to sell all the personal property of the said intestate, and made what purports to be a true return thereof, embracing an inventory of the judgments, bonds, notes, accounts and other debts of the intestate; but they charge that, by collusion between him and the said "William E. McKesson, he failed to return the notes and single bills which the said William owed the said Samuel Fleming at the time of his death, to wit, one for $2,250, due 10th of Nov., 1819, and another for $150, due 1st of Jan., 1851.

The bill alleges that the defendants further combined and confederated together to cheat and defraud the plaintiffs, and, by collusion, the said James suffered and procured judgments to be rendered in the Superior Court of Burke county against himself as administrator, in favor of the other defendant William, to wit, one for $862,08; one other for $591,16, and costs; and a third for $116,03 ; that no part of either of these judgments was due from the deceased to the said Win. E. McKesson, and that recoveries might have been successfully resisted if the defendant James had desired to do so ; but that, instead thereof, he, by collusion, and for the benefit of his son, allowed the said judgments to bo obtained without sufficient proof, and without producing on the trial the rebutting testimony within his possession and knowledge; that besides these amounts, the defendant James has in his hands other large sums which are due and distributable among the plaintiffs.

The prayer is, that the said judgments-may be declared void, and if paid, tliat the said Wm. E. McKesson be decreed to repay the amount, with interest and costs, to the plaintiff's, and that he be decreed to pay the said notes and bills and all other debts due and owing from him to the said Samuel Fleming at his death ; and that the said James render a full account of his administration; with a prayer for general relief.

The defendants severally demurred for the want of equity *318in the bill; and for further cause, that the bill alleges several and distinct grounds of complaint against several and distinct persons, and is thus multifarious.

The cause was set down for argument on the demurrers, and, upon argument in the court below his Honor over-ruled the same, and ordered that the defendants answer; from which decree, defendants appealed to this Court.

Baxter, for the plaintiffs.

*JV. W.*Woodfin, for the defendants.

Battle, J.

Ve have no hesitation in deciding that the demurrer of the defendant James McKesson must be overruled. The pflaintiffs, as the next of ldn of his intestate, have a right to a full account of his administratioii, and there is nothing charged in the bill to which he ought not to be compelled to answer. If he, by collusion with the other defendant, who is his son, permitted him to abstract notes from the papers of his intestate, he ought to be accountable for them, and he is equally liable if he fraudulently permitted his son to recover judgment against him upon feigned debts.

The right of the plaintiffs to discovery and relief against the other defendant, the son, is, both upon principle and authority, equally clear. The demurrer admits the charge of collusion, and that being established, it is manifest that the father cannot be relied on to take the proper steps against his son for holding him to a just responsibility to the estate of his intestate. Besides, the plaintiffs seek to have the judgments obtained by the son against the father enjoined, and for that purpose the son is certainly a necessary party. In *Spack*v. Long, 2 Dev. and Bat. Eq. 60, this Court decided, that though, generally, legatees cannot sue a debtor of the testator, because it is the right and duty of the executor to collect all debts, yet, where the executor was insolvent, and manifestly under the influence of the debtor, who was his brother, and that influence was collusively exercised to the injury of the legatees, they might, in Equity, have an account *319against the debtor. It is true that, in that case, the executor was insolvent, but it will appear, from the opinion, that the Court based their decision quite as much upon the improper influence exercised by the debtor brother over the executor, to the prej udice of the legatees.

In the present case, assuming, then, collusion between the father and son, as charged in the bill, to be true, the power of the son over the father, will undoubtedly be used in a manner detrimental to the interest of the next of kin.

The counsel for the defendants have referred us to the case of *Pearse*v. Hewitt, 7 Simons, 471, (10 Eng. Ch. Rep. 152,) as an authority against the right of the plaintiffs to make the defendant "William E. McKesson, a party. That was a case where the devisees and legatees, under a will, filed a bill against the trustees and executors, and also against the mortgagee in possession of a part of the estates, alleging that the trustees and executors, colluding with the mortgagee, refused to make him account for the rents which he had received, or to redeem the mortgage, and prayed for an account of the testator’s assets, and that the mortgage might be redeemed. The mortgagee tiled a demurrer for multifariousness, which was sustained by the Yice Chancellor, Sir LaNoelot Shadwell, upon the following ground : “If he (the mortgagee) is never to be freed from his suit until the accounts of the personal estate have been taken, he will not be placed in the situation in which he ought to be, because he has a right to have the account of his principal and interest taken at once, and a day fixed either for the payment of it or for a foreclosure, and not to await the result of taking the accounts of the personal estate, and other matters in which he is not at all interested.” In the course of his remarks, the Yice Chancellor referred to the case of *Doran*v. *Simpson,*4 Ves. Jr., 651, which had been cited to show that a party interested in the personal estate of the testator, had a right to sue a debtor to the estate, where there was collusion between him and the personal representative. But he remarked, that the right to sue extended only so far as was necessary to obtain payment of the debt *320lie also referred to the case of *Burroughs*v. Elton, 11 Ves. Jun’r., 29, decided by Lord EldoN, which he said was much discussed, and decided the same principle. ITo closed his remarks upon those two cases by saying, that the creditor might “ sue to the extent to which it was necessary that he should sue for realising the debt, in order that it might be made available for the payment of what was due to himself and the other creditors of the testator, because the hand which ought to receive the debt would not be stretched out to receive it.” “ Those cases, however, (he adds) differ from the present, for there, the sole object was to recover the debt, but this not only seeks to redeem the mortgaged estate, (to which purpose it ought to have been confined, so far as he was concerned,) but relates to a variety of other matters in which he has no interest, and therefore, the cases cited have no analogy to the present.”

We think the situation of the defendant ¥m. E. McKes-son is very different from that of the mortgagee in the case to which his counsel refers, and is more like that of the debtor mentioned in the cases therein cited. He is charged to be a debtor colluding with the administrator, his own father, not only for the purpose of avoiding the payment of the debts which he justly owes the estate, but actually seeking, by means of such collusion, to recover from the estate, debts alleged to be due him, which, in fact, never existed. If the charge of collusion be true, as admitted by the demurrer, it would be contrary to all human experience to expect that the father “ will stretch out his hand to receive the debt” due from his son, or to prevent the collection of the judgments which the son has obtained against him.

Under the circumstances, it seems to us, that he is a necessary party, and his demurrer must be over-ruled.

The plaintiffs are entitled to a decree, over-ruling both demurrers, with costs, and requiring both defendants to put in answers to the bill.

Per Curiam, Decree accordingly..