Beaty v. . Gingles

53 N.C. 302

• Court: Supreme Court of North Carolina
• Decided: December 5, 1860
• Status: Published

Opinion

Battle, J.

"Where an executor sues upon the possession of his testator, he must sue as executor, because he must make proferí, in his declaration, of his letters testamentary, but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, however, he sue “as executor” when the action is brought upon his own possession, the words “as executor” are considered as mere surplusage ; Hornsey v. Dimocke, Ventris 119 ; Com. Dig. Pleader, (I. D. 1); Cotten v. Davis, 3 Jones’ Rep. 355. But an action against a person “as executor” for an act done or a contract made by him after the death of his teslator, cannot be sustained; for, in such an action, he must be sued in his individual, and not in his representative capacity, and the words “ as executor,” cannot be rejected as surplusage. This is well settled by the case of Hailey v. Wheeler, 4 Jones’ Rep. 159, where the subject is fully discussed; and that case has since been referred to, and confirmed by the very recent one* of McKay & Devane v. Royal, 7 Jones’ Rep. 426.

Per Curiam,

Judgment reversed and a venire de novo..