Administrators of Hazen v. Heirs & Devisees of Tillman

5 N.J. Eq. 363

Opinion

The Chancellor.

The .question .is, whether a decree against executors, in a suit against them, is sufficient evidence in a subsequent suit against the heirs and devisees, of the existence of the debt.

A decree ..qf this .court is equivalent to a judgment at law. But one who is not made a party, and between whom and the party there is no privity, is not bound by the decree. There is no privity between the executor and the heir or devisee: 1 Paige, 35; 1 Munf. 437; 4 Harr, and John. 126, 270.

In the case in Munford, the bill .was against the executors ,ánd devisees; no proof of,the claim was offered, except a judgment against the executors. The court held .it .was no proof against the devisees.

The debt of the ancestor, or devisor, should be established in a suit in which the heirs, or devisees, are parties, a,nd in which .they can contest it.

The effect of the demurrer is not to admit the debt; hut .to submit to the court the question, whether, on the .fact stated in .the bill, that a decree was obtained in a suit against the executors, a decree can be made against the devisees in this suit.

The demurrer is allowed, with -leave to the complainants to amend their bill.

Order accordingly.