10 Paige Ch. 288 | New York Court of Chancery | 1843
All the executors or administrators of the testator or intestate must be made parties to a suit in chancery of this description. The practice at law is to bring the suit in the first place in the name of all, and if either of them is unwilling to have the suit prosecuted in his name afterwards, the one who has instituted the suit may then, upon a summons, have a judgment of severance and continue the suit in his own name only. (2 Walf. on Parties, 1530. Went. Off. of Ex. 212.) But in this court, if one of the executors or administrators, who is a necessary party, refuses to join in the suit as a co-complainant, the proper course is to make him a party defendant; stating in the bill the fact that he would not consent to be a complainant in the suit. (Thompson v. Graham, 1 Paige’s Rep. 384. Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2. Calv. on Parties, 11, n. 3.) The present suit therefore cannot be carried on in the name of the defendant’s father, as one of the complainants, without his consent. And the other complainants must amend their bill, by striking out the name of N. Oakley as one of the complainants, and making him a defendant, and by inserting a proper averment in the bill that he was unwilling and would not consent to join in the suit as a complainant. If such amendment is made within thirty days it may be made without prejudice to the injunction, and the motion to take the bill off the files and to dissolve the injunction is to be denied. But if such amendment is not made and served upon the defendant’s solicitor within thirty days after service of a copy of the order to be entered upon this application, the motion is to be granted, with costs to be paid by the complainants W. A. Tooker and Phebe Tooker.
The application for a receiver must be denied ; but with liberty to renew it after the bill shall have been amended. And the costs of the defendants upon both of these motions are to abide the event of this suit.