Bodle v. Hulse

Decided July 15, 1830

New York Supreme Court · decided 1830-07-15

Demurrer, to replication. The plaintiffj in the declaration in this cause, is described as “ A. T. Bodle, acting executor of the last will and testament of A. Bodle, deceased.” The defendant pleadsln abatement that the testator, in and by his last will and testament, constituted and appointed the plaintiff and one Oliver Bodle executors, &c. and that Oliver Bodle, at the time of the commencement of the suit, was and still is living, &c. The plaintiff replies that Oliver…

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Decided 1830-07-15

How this case has been cited

Cited by 9 later decisions — most recently June 1912

8 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1By the Court,

Savage, Ch. J.

¶2Where there are several executors, they must all join, even though some renounce. It was so resolved in Hensloe’s case, 9 Coke, 37, and the same practice is recognized by subsequent writers and in subsequent cases. 1 Chitty’s Pl. 13. 1 Saund. 291, g. The reason assigned by Bacon, 3 Bac. 32, is, that all the executors have the right in them, and he that did not prove may come in when he pleases ; and even he who renounced may administer after the death of the other executors. Toller, 68, 69.

¶3 *314The proper practice, where one renounces, probably is to prosecute in the name of all the executors named in the will, if living, and on summons to those who will not join, there will be judgment of severance ; and then the others may proceed and recover in their own names. Toller, 44, 5. 3 Bac. 32. Cro. Jac. 420.

¶4The defendant is entitled to judgment of respondeos ouster, upon the demurrer to his plea in abatement.