Mailly v. Elliott
75 A. 472
N.J.
1910
Check Treatment

The opinion of the court was delivered by

Swayze, J.

Thе record of the judgment of the Eirst District Court of Jersey City shows a judgment against Jane Mailly, individually and as executrix of James Mailly, deceased, for a single debt. The rule is well settled that claims against an exeсutor in his representative capacity and as an individual cannot be joined, for the reason that in one ease the judgment wоuld be de bonis testatoris, and in the other, de bonis propriis (1 Chit. Pl. 304, 205; Terhune v. Bray, 1 Harr. 53), although it has been held by this court, following Lord Ellenborough’s remark in Cowell v. Watts, 6 East 405, thаt counts may be joined where the fund out of which the damages ‍‌​​‌​‌‌​​‌​​‌‌‌​‌​​‌​​‌​‌​‌​​​​​‌‌‌​‌‌​‌‌​‌‌​​‌‌‍are to come or to which they are to be applied, is the *71same. Reeve v. Cawley, 2 Harr. 415 (at pp. 418, 419). That rule does not help the judgment in the present case, for, so fаr as the judgment record itself indicates, the judgment against the defendant individually is not to be satisfied out of the assets of the estate. If it were to be, it is difficult to suggest a reason why the judgment should have been entеred in this form. The only object for thus entering it must have been to hold both thе property of the testator and the individual property of thе executrix. This brings the case within the reason of the rule forbidding the joinder of such causes of action. Similar cases are to be fоund in the New York reports. It is sufficient to cite Myer v. Cole, 12 Johns. 349; DeMott v. Field, 7 Cow. 58.

Advantage may he taken of a misjoinder, not only by a demurrer or motion in arrest of judgment, hut also by proceedings in error. 1 Chit. Pl. 205; Cooper v. Bissell, 16 Johns. 146. This case was held inapplicablе ‍‌​​‌​‌‌​​‌​​‌‌‌​‌​​‌​​‌​‌​‌​​​​​‌‌‌​‌‌​‌‌​‌‌​​‌‌‍to the situation which existed in Lovett v. Pell, 22 Wend. 369, for the reason that the only misjoinder in that case was of a count in covenant with a count in assumpsit, but the court recognized that there were cases of misjoinder which must ueеessarily produce an erroneous judgment, so as to deprive the defendant of some substantial right, and cited, as an instance, thе case of the joinder of a count against an executor or administrator for a debt due from the decedent, with a count fоr a debt due from the defendant personally. And this court, upon a certiorari to the Common Pleas, upon an appeal from the Court for the Trial of Small Causes (which was a proceeding substantially ‍‌​​‌​‌‌​​‌​​‌‌‌​‌​​‌​​‌​‌​‌​​​​​‌‌‌​‌‌​‌‌​‌‌​​‌‌‍like the present), held that there was error because separate causes of action were misjoined. Wills v. Shinn, 13 Vroom 138.

If it is true, as the state of demand seems to indicate, tliato the only claim against the defеndant as executrix is for funeral expenses, it may be possible tо amend the record and let the judgment stand as a judgment against the dеfendant individually, since the liability of the executor for funeral expenses is in the first instance an individual liability, with the right to priority of payment by wаy of reimbursement out of *72the estate. 3 Wms. Ex. (6th Am. ed.) 1886; Ferrin v. Myrick, 41 N. Y. 316; Luscomb v. Ballard, 5 Gray 403. No application for. that purpоse was made by the defendant in cicertiorari, the plaintiff below; and his argument that under our statute the estate of the decedent is liable for the dеbt directly to the plaintiff, ‍‌​​‌​‌‌​​‌​​‌‌‌​‌​​‌​​‌​‌​‌​​​​​‌‌‌​‌‌​‌‌​‌‌​​‌‌‍indicates that what he really desires, is to hоld the estate and not the individual defendant, as is permissible under Campfield v. Ely, 1 J. S. Gr. 150. He ought not to be deprived of the right, if he has it, by an amendment which may makе this judgment stand as a judgment against the defendant individually only.

It would be equally рossible to amend by making the suit one against the defendant as executrix only but for the fact that an examination of the state of demand shows that it contains a claim for moneys loaned to the dеfendant, and there is nothing to indicate that the estate could in аny way be held liable for that portion of the claim.

The judgment must therefore be reversed, and the record ‍‌​​‌​‌‌​​‌​​‌‌‌​‌​​‌​​‌​‌​‌​​​​​‌‌‌​‌‌​‌‌​‌‌​​‌‌‍remitted to the District Court for a new trial. Marcus v. Graver, 42 Vroom 95.