The bill in this case prays an injunction against a sale by the administrator, of certain lands of the deceased, under an order of sale obtained in the County Court, as upon a deficiency of personal assets, to pay the debts of the deceased: it alleges that the order in the County Court was obtained without the service of notice on two of the heirs, which would be ground for setting the order aside on motion in the County Court, or in the court to which that order has been transferred. A sale would not pass the estates of those who were not made parties by a service of process, and obviously in a case like this, a sale of the estates of some of the heirs only, would be unjust. If that ground of relief existed alone, the plaintiffs would have no right to sue in equity, because they would have ample remedy in the original action; but they also demand an account from the defendant, of his administration, to which they are of course entitled; and as subsidiary thereto, that the sale of the lands may be enjoined until the account shall be taken and it shall be found that a state of things exists which makes a sale necessary and proper. On a petition by an administrator to sell the lands of the deceased, he must satisfy the court, either that the personal estate has been exhausted in the payment of the debts, and that others are *186due, or that it will clearly be insufficient for that purpose. The court, for its own satisfaction, may require an account of the administration of the personal estate to betaken; but the decree giving or refusing the order of sale, does not profess to pass on the account except to the extent that may be necessary to ; ustify the order, and binds nobody as a decree declaring the state of the account: Latta v. Russ, 8 Jon. 111. Tbis will be obvious without further argument, by the reflection that the distributees, who are entitled to an account of the personalty, may not be the same with the heirs, who are the only necessary defendants in a proceeding to sell the land. In this case it appears that the administrator received personal property which, if it could have been sold at the time for money which the creditors were willing to receive, would probably have been ample to pay all the debts. The condition of the country, however, in the latter part of 1863, made it uncertain whether that could be done, and this we may suppose, was the inducement to the agreement among the distributees, for a division of the property among them. After a partial division, the slaves Avere emancipated and thus become lost to the estate. We think the rule announced in Wiley v. Wiley, Phil. 131, applies in this case, and that under the circumstances, the distributees have a right to come into this court, Avhere alone the account can be fully taken, and the propriety of a sale of the lands properly determined, and the rights of all the parties adjusted. We think therefore, the Judge erred in dissolving the injunction.
As to the exceptions to the account: The first five are sustained; the plaintiffs who come into Court for equity must do equity. The administrator did not receive the sums mentioned in these exceptions, and part of the property was delivered to the plaintiffs, at then request, and held and enjoyed by them. As to holding the administrator liable for the value of the slaves, because he did not sell them in 1863; we think it Avould be unreasonable: of course they could only *187have been sold for Confederate money, and the plaintiffs seek to charge the defendant with the full sum of what he did receive. The exceptions relating to Confederate money are also sustained. W e think the administrator was j ustified, in receiving it, and it does not appear to us that he was negligent in endeavoring to pay the debts with it.
The case will be remanded to the Superior Court, in order that the account may be modified according to this opinion. If the defendant shall there by a petition in this cause, pray for a sale of the lands, it will be competent for the Court to make such order, provided there are circumstances to justify it.
Judgment below reversed in part — Injunction continued until final hearing. Suit remanded.
Pee Curiam. Ordered accordingly.