5 Wend. 224 | N.Y. Sup. Ct. | 1830
By the Court,
The questions presented in this case, in the order in which they arose at the circuit, are the following: 1. Is the defendant Van Vechten a devisee under the will of the testator 1 2. If not, could the plaintiffs enter a nolle prosequi as to him, and proceed against the other defendants 1 3. Were the children of Mrs. Cobb properly made defendants ?
If this be law, and I believe there is no doubt that it is so, Van Vechten may prove the will at any time; and even had he renounced, should Mrs. Gibbons die before the youngest child comes of age, he would be entitled to administration, and letters of administration granted to an administrator
2. But suppose he was not, then the question arises, could the plaintiff enter a nolle prosequi as to him 1 In actions upon contract the rule is this: Where the action is brought against several defendants as joint contractors, who join in their pleas, and a verdict is found against them, the plaintiff cannot enter a nolle prosequi against any of them; but if such defendants sever in their pleas, and one pleads some plea which goes to his personal discharge and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him and proceed against the others. 1 Saund. 207. 1 Wills. 90.
3. -This brings me to the last point of inquiry, whether the plaintiff was bound to make out a joint cause of action against the children of Mrs. Cobb 1 All the defendants in this case are prosecuted as the legal representatives of the real estate of the testator, in the same manner as executors are sued as the representatives of the personal estate. Upon the principle just stated, and upon the case of Hartness v. Thompson, if it appear on the trial that any of the defendants have a defence which is personal, and does not go to the action of the writ, the plaintiff should take a verdict against the other defendants, and a verdict should be given for those who prove their personal privilege, and judgment will be entered accordingly. The defendants in this suit are not sued as joint contractors upon their own contract; the contract was made by their ancestor. It is not at all within the principle that a joint contract must be proved because such a contract is declared on; 3 Cowen, 374; nor, according to the decision of the judge at the circuit, is this case in
[The judge then proceeds to take a view of the statute authorizing actions against heirs and devisees, and the effect of failing to prove the children of Mrs. Cobb to be heirs or devisees, after joining them as parties in the suit; but as the mode of proceeding in such cases is altered by the Revised Statutes from what it was formerly, it is deemed unnecessary to give the residue of the opinion pronounced in this case.]
New trial granted.