The Vice-Chancellor:
This demurrer is to the whole bill; and divers causes of demurrer are assigned. One is admitted to be a good cause of demurrer, viz. that the personal representative of John Conrey, the grandson, who died intes*53tale and without issue in the year eighteen hundred and twenty-nine, is not before the court. It does not appear that an administrator of his estate has ever been appointed. The complainants, Sarah Ann Clason his sister and Mrs. Quick his mother, are alleged to be his next of kin; but, as such and in that capacity, they can have no authority to sue or file a bill founded on his right. Hence it is, that, so far as this bill seeks an account of what was due or belonged to him, it is defective as not being presented by the proper party for that purpose. The question then is, whether this is a defect which goes to defeat the bill entirely or is such as can be obviated by an amendment, or by supplemental bill, as was done in Hunter v. Hallett, 1 Edw. Ch. Rep. 388.
It is well settled to be a sufficient ground for dismissing a bill, that a person is joined as a co-complainant, who has no interest in the matters of the suit and no right to sue; and the objection may be taken by demurrer or raised by plea, as the case may be : The King of Spain v. Machado, 4 Russ. R. 225, 242, and 244; recognized in Clarkson v. De Peyster, 3 Paige, 337.
At present, these complainants have no right to exhibit a bill, jointly or severally, for the arrears of annuity alleged to have been due to John Conrey : Tourton v. Flower, 3 P. Wms. 371. Still, as next of kin and entitled to receive the clear surplus of his estate, if any, upon a distribution, it cannot be said they have no interest in the subject matter of this claim; but it is not such an interest as gives them a standing in court or constitutes them necessary or even proper parties to a bill for enforcing the demand. An administrator is the only proper party to file a bill in these cases; and as, by law, the right to administration does not, in the first instance, belong to the mother Mrs. Quick, but to the sister in preference (2 R. S. 74, sec. 27,) the case does not come within the principle of Hunter v. Hallett, supra, or the case there cited of Humphreys v. Humphreys, 3 P. Wms. 349, where the complainants were the only persons entitled to take out letters of administration, thereby qualifying themselves immediately to be the proper parties as complainants, and where the court, looking to that circumstance, will retain "the bill to give the party *54an opportunity of remedying the defect, upon terms, notwithstanding the allowance of the demurrer.
1 am inclined to think, that on this ground alone—the mak]ng of Mr. and Mrs. Quick co-complainants, in this bill, with Mrs, Clason—the demurrer is fatal to it.
But there are other objections taken by the demurrer, which go to the whole merits of the case as made by the bill. The one hundred dollars, part of the annuities for the support and education of these two grandchildren during minority, which is now in question, charged upon the estate devised to the testator’s daughter, Mrs. Lawrence, for life, and remainder to the defendants, was to be paid annually out of the same. The will does not say, in terms, out of the rents and profits, but, in such case, the accruing rents and profits would be considered the primary source for the payment of the sum, and, in that respect, it would fall upon the life estate of Mrs. Lawrence. If the rents and profits were sufficient, she, as tenant for life, was bound to keep down this annuity ; and if the payment of it were to be continued after the determination of the life estate, it would devolve upon the remainder men to pay it, as the whole estate generally, both for life and in fee, stands charged by the will with the payment. So, if, during the existence. of the life estate, the rents and profits were insufficient to satisfy the amount, the deficiency would be a charge upon the fee, to be raised by mortgage or otherwise out of the capital of the estate. In short, both the tenant for life and the devisees in remainder took their respective estates, subject to the payment of this annual sum ; in the order, however, of their possessory right and enjoyment of the property. But this payment was to be made annually to the executors. The executors are appointed by the will to receive the money and to see to the application of it; and, if any surplus remained, they were constituted trustees to invest and finally to divide the fund between the two grandchildren. The executors, then, were the persons to be called to an account by the grandchildren, when they came of age. The presumption is, that they performed their duty and received these annual sums out of the property devised ; and in a bill filed for an account, passing by the executors and seeking to obtain payment out of the property in the hands of the devisees in remainder, I *55think the bill should show, affirmatively, by direct allegation, that the money never came to the hands of the executors and still remains a charge upon the estate. As regards Peter Conrey, one of the executors and also a devisee of a portion of the testator’s property subject to a similar charge, the bill admits that he has fulfilled his duty and it exonerates him from all accountability, and, therefore, omits to make him a party to the suit. And, with respect to Richard P. Lawrence, the other executor now deceased, who was the husband of the tenant for life of that portion of the property now in controversy, the bill alleges, that he entered into possession thereof in right of his wife ; and then, instead of showing that the one hundred dollars a year were not raised out of the property in any way, and were not in his hands as executor and trustee, the bill goes on merely to state, that the complainants are wholly ignorant whether any or what amount of such annuity was paid or applied for their support and education ; with this additional allegation, that neither Richard P. Lawrence nor his wife, in their lifetime, nor the defendants, nor any other person representing them, have accounted for the one hundred dollar annuity or the appropriation of the same; nor has much thereof, if anything, been applied for support and maintenance, or invested as directed by the will. Now it is very certain, that the defendants are not liable to be called to an account for any misapplication of the money by the executor and trustee, Richard P. Lawrence ; and as he was in possession, in right of his wife, she being tenant for life, and bound to permit the income to be applied to the payment of the annuity, he must be considered as receiving it for that purpose ; and if he has not applied it, as he should have done, he alone is chargeable with the misapplication; and the remedy should be against him or his legal representatives or estate. The annuity having once been raised out of the income of the estate devised by the will, such estate is not again to be charged: 1 Roper on Leg. 498, pl. 8; Anonymous, 1 Salk. 153 ; Carter v. Barnadiston, 1 P. Wms. 518; Hutchinson v. Lord Massareene, 2 Ball and B. 54 ; nor are the defendants, in respect thereof, to be made liable, and it is only in that view that the present bill seeks to charge them.
In order to lay the foundation for a claim still against the *56estate, the bill should expressly rebut the presumption that the money came to the hands of the executor from the estate, . . . , , . , instead of resting merely upon the complainant s ignorance, not of the fact that it did so, but of the fact of the annuity ever having been paid or applied to the support and education of the infants. As every fact is to be taken most strongly against the party pleading or alleging it, I think, in the absence of any direct averment to the contrary, the conclusion must be that the money was received by the executors out of the rents and income of the estate, and, consequently, the estate is discharged from the hen. On this ground also I consider the bill demurrable. With respect to the objection, that Peter Conrey is not made a party, I am inclined to think, that if sufficient were shown to give the complainants a title to sue and to sustain the bill in its present form, enough appears upon the face of it to dispense with Peter Conrey as a party. But, as the demurrer is well taken upon other grounds, and as one of them, at least, cannot be obviated by an amendment or supplement, the bill must be put out of court. Order, that the demurrer stand allowed and the bill be dismissed, with costs.