Majority
p. 441Reynolds, adm’r &c. vs. Collin, ex’r &c. for the motion.,, cited Ketchum v. Ketchum, (4 Cowen, 87 ;) Chamberlin v. Spencer v. (id. 550, ;) Mann v. Ba
Headnote
An executor or adminisirator nrast pay costs if he fail in an action on a demand not necessarily prosecuted in his representative capacity.Accordingly, where an administrator sued as such for the use and occupation of premises in which the intestate had only an estate per autre vie, and the alleged use and occupation occured since the intestate’s death; held that, the action hav. ing failed, the administrator must pay costs.
Costs against the plaintiff suing as administrator. The plaintiff’s intestate, held certain premises under a lease for three lives, one of which lives continued after his death. Subsequent to the intestate’s death, the defendant’s testator occupied the premises under the plaintiff, and the present action was for that use and occupation- of the property. The cause having been referred, there was a report for the defendant on the ground that the claim was barred by the statute of limitations The defendant now moved that the plaintiff be ordered to pay the costs, of the action.
C. L. Monell,
p. 442ker, (5 id. 267 ;) Tilton’s adm’rs v. Williams, (11 John. R. 403 ;) The People v. Albany Mayor’s Court, ( 9 Wend. 486 ;) Van Orden’s adm’r v. Reynolds, (18 id. 635 ;) Mercein v. Smith, ( 2 Hill, 210 .)
If. Miller,
for the plaintiff, cited Hooker v. Quilter, ( 1 Will. 171 ;) Petrie v. Hannay, (3 T. R. 659.)
On the death of the owner, an estate per craire me becomes a chattel real, and goes as assets to the executor or administrator to be applied and distributed as part of the personal estate of the testator or intestate. (1 R. S. 722, § 6 ; 2 id. 82, § 6.) The cause of action accrued after the death of the intestate, and the plaintiff did not necessarily sue in his representative character. In such cases it is well settled that an executor or administrator must pay costs if his suit fails.
Motion granted.