Majority
p. 313Bodle, acting executor, &c. vs. Hulse.
Headnote
Where there are several executors, they must all join in the prosecution of a suit, even though some renounce. A suit in the name of A. B. as acting executor cannot be maintained.Xl seems the practice is, where one renounces, to prosecute in the name of all the executors named in the Will, if living ; and on summons to those who will not join, there will be judgment of severance, and the others may pro. ceed and recover in their own names.
Demurrer, to replication. The plaintiffj in the declaration in this cause, is described as “ A. T. Bodle, acting executor of the last will and testament of A. Bodle, deceased.” The defendant pleadsln abatement that the testator, in and by his last will and testament, constituted and appointed the plaintiff and one Oliver Bodle executors, &c. and that Oliver Bodle, at the time of the commencement of the suit, was and still is living, &c. The plaintiff replies that Oliver Bodle has not proved the will, or taken upon himself the burthen of the execution thereof ; has filed a renunciation of his appointment as executor in the office of the surrogate of the county of Orange, and has altogether declined and refused to act. as such executor, and has not intermeddled with the estate of the testator, and that A. T. Bodle is the sole acting executor of the said will, &c. ; to which replication there is a demurrer and joinder.
J. R. Van Duzer, for defendant.
Wilkin Sf Benton, for plaintiff.
By the Court,
Where there are several executors, they must all join, even though some renounce. It was so resolved in Hensloe’s case, 9 Coke, 37, and the same practice is recognized by subsequent writers and in subsequent cases. 1 Chitty’s Pl. 13. 1 Saund. 291, g. The reason assigned by Bacon, 3 Bac. 32, is, that all the executors have the right in them, and he that did not prove may come in when he pleases ; and even he who renounced may administer after the death of the other executors. Toller, 68, 69.
p. 314
The proper practice, where one renounces, probably is to prosecute in the name of all the executors named in the will, if living, and on summons to those who will not join, there will be judgment of severance ; and then the others may proceed and recover in their own names. Toller, 44, 5. 3 Bac. 32. Cro. Jac. 420.
The defendant is entitled to judgment of respondeos ouster, upon the demurrer to his plea in abatement.