Ketchum v. Ketchum

4 Cow. 87 | N.Y. Sup. Ct. | 1825

Curia.

The rule is, that where an executor or administrator unnecessarily sues in his representative character; that is, where he might have brought the action in his own name; if he is nonsuited, or there shall be a verdict against him, (5 T. R. 234-5,) he shall pay costs. The mere change of the form of action shall not protect him. In this rule the counsel agree; and it is abundantly supported by the cases cited on both sides. Then the only question is, whether Ketchum. the plaintiff in this suit, necessarily described himself as executor. On looking into the cases, we think he did. The case of Goldthwayte and wife, executrix, v. Petrie, (5 T. R. 234-5,) we think, draws the correct distinction. It lays down the rule as established, that where an action is brought by an executor, as such, for transactions arising in the lifetime of his testator, he is not liable to pay costs, though he fail in the action. That was an action brought to recover money alleged to be received after the death of the testator, to the use of Goldthwayte’s wife, as executrix; the whole transaction, as declared upon, took place after the testator’s death; the money was averred to have been received, and the implied promise to have arisen afterwards; there was no cause of action whatever set forth ¿gainst the defendant, as having accrued before; and the verdict being for him, .the executrix was holden to pay the costs. There she might have sued in her own name, wittri out mentioning her representative character at all; but it is different where there is a full and complete cause of action during the testator’s or intestate’s lifetime. There a promise, after his death, to pay the debt, will not enure to the executor or administrator, in his individual character. It is merely a confirmation of the demand due in a representative character. Jenkins et ux. v. Plombe, (6 Mod. 91; id. 181; 1 Salk. 207, S. C. by the title of Jenkins v. Plume,) cited by the Court, and recognized as law, in Goldthwayte v. Petrie, contained a similar doctrine. The distinction which we now take was there much considered, and very fully illustrated. In its outline, that case was the same as Goldthwayte v. Petrie, being an action by executors, for money had and received to their use as such, after the testator’s death. Holt, Ch. J. said the receipt was in the plaintiff’s own right-; and, in any view5 the debt ought to be looked upon as a new debt, contracted since the death of the testator. He illustrated his - remarks by the familiar case of trover upon the executor’s own-possession, in which it is now fully settled, that if he fail he must pay costs; He then mentions a- case much like the present; a casé where a balance is struck on an accounting between an executor and the debtor, upon matters of account which arose in the testator’s life; and there, he says, though a new action accrues, yet the executor shall not pay costs, if he be defeated. It is still in the right of the testator. No new contract is made. The whole is a mere ascertaining of what was due before. Yet the law always implies a promise upon a balance struck; but the promise is to the executor as such; and the action should still’ be in his name. So in another case put by Ho'lt, “ if judgment and execution be in this testator’s life, and- escape in executor’s time, upon a nonsuit in action by the executors for this escape, he shall not pay costs; but if he had judgment and execution in his own time, and an escape had happened, for which he bfirigs-an action and is- nonsuited, he shall pay costs.” The whole Court agreed upon the case of the insimul computassst, as appears -by the report both in 6 Mod. and in Salkeld." The distinction, therefore, seems to lie-between an entire and a-partial cause of action arising after the testator’s death. And there is reason in such a distinction. In the former case, the executor knows, or ought to know, the merits of the cause, and should be holden to sue, upon the peril of costs. In the latter case, he cannot understand the whole subject; and, therefore, the law holds him to no more than his own expenses. Then what is this case ? A promissory note, and money had and received, lent and paid, &c. all in the testator’s lifetime; and, in consideration of this, a promise to the executor, as such, that the money should be paid. This is not so strong a case against the executor as an insimul computasset. Here cannot be said to bé a' new action; and we think the plaintiff Was under a necessity to sue in his representative character. The cause of action was complete during the life of his testator. It is not' like the case of trover upon his own possession, an escape upon his own judgment and execution, or money received immediately to his use, &c.; and, on the whole, we are clear against allowing costs.

Motion denied.