Summary
In Thorburn v. Gates, 181 N.Y.S. 520, it was held that the cause of action being prosecuted against an administrator survived, and therefore did not abate on death of the administrator, and it was stated that the court is authorized to substitute the succeeding administrator as a party defendant, it not being made to appear whether such substitution was by special statute as in North Dakota or Nebraska.
Summary of this case from Perry v. LebelOpinion
April 9, 1920.
Robert H. Thorburn, for the appellant.
Ben LeRoy Stowell of counsel [ Taylor, Humes Begg], for the respondent.
The action was by a resident creditor to have administered the real and personal property of the testator's estate situated within this State, and to have the same applied in satisfaction of his debt. The court had jurisdiction of the subject-matter of the action and of the person of the foreign executrix. ( Thorburn v. Gates, 184 App. Div. 443. Cf. Helme v. Buckelew, 191 id. 59.) Upon the death of the foreign executrix, her interest in the estate passed to the administrator with the will annexed when appointed. The cause of action survived; therefore, the action did not abate. (Code Civ. Proc. § 755.) The further proceedings in the action are stayed, by reason of the inhibition in section 765 of the Code, "for if a judgment cannot be entered against a deceased party, so no step leading up to a judgment can be taken." ( Carolan v. O'Donnell, 141 App. Div. 463, 465.) The court on motion of the plaintiff is authorized to substitute the administrator with the will annexed as the party defendant. ( Douglass v. Sherman, 2 Paige, 358, 360.) Due notice of this application was given to all who by any chance could be interested. Attorneys appeared for the administrators with the will annexed of the estates of John W. and Charles G. Gates. They limited their appearance for the purpose of objecting to the jurisdiction of the court, which objection would be futile, as the jurisdiction of the court had been determined. No new facts were set forth that would justify a re-examination of the question of jurisdiction. It was, therefore, res adjudicata. The importance of their appearance is that it conclusively proves that their clients had actual notice of the motion. It is not necessary that a supplemental summons be issued. The substituted party comes into the action as it was when Mrs. Gates died. Inasmuch, however, as she had not answered, appropriate provision should be made in the order for sufficient time to enable the substituted defendants to answer. The order will be reversed and the motion granted to this extent, that the action be revived and the First National Bank of Port Arthur, Tex., as administrator with the will annexed of the estate of John W. Gates, deceased, and the First National Bank of Port Arthur, Tex., as administrator with the will annexed of the estate of Charles G. Gates, deceased, be substituted in place of Dellora R. Gates, executrix and trustee under the wills of John W. Gates and Charles G. Gates, and that the title to the action be amended accordingly, without prejudice to any of the proceedings heretofore had in this action.
DOWLING, LAUGHLIN, SMITH and MERRELL, JJ., concur.
Order reversed and motion granted to the extent indicated in opinion. Settle order on notice.