Pell & Wife v. Elliot — 1 Hopk. Ch. 86

Majority

p. 86

Pell and Wife v. Elliot, ex. and others.

1823. Nov. 15.

Headnote

The suit abated by the death of the complainant after a decretal order establishing a right in favor of one of the defendants. That defendant filed a bill of revivor, within twenty days after the abatement, and before the executrix of the former complainant appeared to have proved the will. Held, that the representatives of the complainant have the first right to revive. It seems they shall have a reasonable time for the purpose.

The order was, that the present defendants show cause in twenty days, why the suit should not stand revived, unless they should apply for further time, saving their rights by way of defence.

This was a bill of revivor. The original suit was institu j ted against Pell and wife with others, to foreclose a mortgage, upon premises on which Mrs. Pell as executrix, claimed a pri- or lien, the validity of which was contested. A decree had been made in the original suit, among other things establishing the prior mortgage, directing a sale of the premises, and payment to the wife as executrix, of the money due on the mortgage claimed by her ; after which the amount due on the mortgage, on which the original suit was brought, was to be' pai.d

p. 87

At this stage of the proceedings the complainant in the original suit died; and within twenty days after his death Pell and his wife filed this bill of revivor, to obtain the benefit of the decree in their favour, in the original cause. The executrix of the complainant in the original suit, and also the co-defendants of Pell and wife, (which co-defendants claimed subsequent liens,) were made defendants in the bill of revivor. The defendants in the bill of revivor had appeared, and had been served with a copy of the bill.

Mr. Davis now presented the petition of the present complainants, of which due notice had been given, that the defendants answer the bill of revivor in eight days, or that in default thereof, the suit stand revived.

Mr. Silliman objected, that the petition was premature. He alleged, that the defendants are allowed six weeks after service of a copy of the bill, or at least from the time allowed for appearance, to answer the bill of revivor; and there is no difference as to the times for appearing and answering original bills or bills of revivor. 1 Har. pr. 220.278.; and the 4th and 14th general rules. In England, a defendant to a bill of revivor, has in a town cause four days, and in a country cause eight days to appeal’, and in either case eight days after appearance, to answer. Hinde’s pr. 48.

Mr. Davis observed, that only one answer can be given contesting a bill of revivor, that is, that the person claiming to be executor, is not such. It is a mere formal allegation to bring necessary parties into court, and the time granted for answering in other cases, cannot apply to the present.

The counsel for the defendants said, that other defences' might exist. There can be no revivor by a defendant, until the representatives of the complainant have made default. The defendant, may therefore, demur. 12 Yes. 317. It may even be questionable, whether complainant has a right to revive at all in this case. 3 P. Wms. 79.; 1 Har. 155.; 1 Vern. 399. ; 2 Madd. pr. 397. Or if he has that right he may proceed to take the bill pro confesso, pursuant to the statute ; and the like is sometimes done by the English practice. 3 Atk. 690.; 2 Bro. ch. 127.

said, that the representatives of the complamin the original suit had the first right to revive, and it did not suffic}ently appear in this case, that this right had been lost; that the bill of revivor had been filed very early after the abatement, and it did not even appear", whether the person alleged to be executor, had proved the will, or acted as such.

The Order was, that the defendants show cause in twenty days, why the proceedings should not stand revived; unless the representatives before that time, should apply for farther time to consider, whether they will file a bill of revivor, and saving to the defendants any defence they may have, by answer or otherwise to the bill of revivor.