1 Paige Ch. 384 | New York Court of Chancery | 1829
Neither is the objection, that Spencer should have been made a party complainant instead of a defendant, well taken. He is insolvent and refuses to execute the trust of an executor, and the complainant had no right to commence a suit in his name without his consent. The only remedy in such a case, if he is a necessary party, is to make him a defendant. *His refusal to prove the wiE and act as executor is substantially a refusal to join as complainant in the suit.
The demurrer in this cause must therefore be overruled with costs.