Bodle v. Hulse

5 Wend. 313 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

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.

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.