6 Paige Ch. 308 | New York Court of Chancery | 1837
Previous to the death of the complainant, the right to prosecute the suit for a partition of the land, and the right to an account and payment of her share of the rents and profits which had been received by one of the defendants exclusively, belonged to one and the same person, and might therefore be properly joined in the same bill. But upon her death the right to the rents and profits previously accrued was cast upon her personal representative, for the benefit of creditors or distributees; and the right to a partition of the land, and to the future rents and profits merely, belonged to the petitioner, as the heiress at law. It is evident, therefore, that the petitioner has no right to revive the suit so far as relates to the rents and profits accrued before the death of the decedent, which are a part of the personal estate. And upon the principle of the provision of the revised statutes authorizing a surviving complainant to proceed, in certain cases, notwithstanding the abatement of the suit as to a part of the original subject of litigation, (2 R. S. 184, § 108,) I think the petitioner was authorized to revive the suit so far as she only was interested in its further prosecution, leaving the parties interested in the other part of the litigation to revive it or not, as to the rents and profits, as they should think proper.
The order appealed from must, therefore, be affirmed, with costs, to be paid to the respondent Eliza H. Hoffman. And the order of affirmance is to be entitled in the suit as revived in the name of the petitioner.
See Ferrers v. Cheny, 1 Equity Cases Abridged, 4, pl. 11.