O'Driscoll v. Fishburne

Decided January 15, 1818

Supreme Court of South Carolina · decided 1818-01-15

This was an action of debt, on a judgment recovered against Thomas Ladson, in his lifetime. He died leaving a will, and William Sanders his executor. Sanders, the executor, died, leaving a will, and appointing the defendant, William Fishburne, his executor, against whom the present action was instituted, charging him as executor of William Sanders, executor of Thomas Ladson, deceased. Defendant pleaded payment, on which issue was taken.

Decided 1818-01-15

¶1The opinion of the Court was delivered by

Gantt, J.

¶2There can be no question, but that the executor of an executor represents the first testator, and. may declare as such, without naming or noticing the first executor ; and e converso, where an action is brought against the executor of an executor, for a debt due by ^he *47testator, be may be declared against, as the executor* of the deceased testator, without noticing the first executor. (Toller, 1st Edition, 26, 44; Chitty, 13.) But'although this may be done, it does not follow, that it is an error to notice the prior executorship. On the contrary, it is the more usual and correct mode of proceeding.

¶3The nonsuit was therefore improperly ordered and must be set aside.

¶4It is unnecessary to give any opinion on the second ground taken in this case, as we are all of opinion, that the nonsuit ought not to have been allowed, on the objection taken by defendant’s counsel.

Colcock, Cheves and Johnson, JJ., concurred.