Gormly v. Skinner's Executors

Ohio Supreme Court

Gormly v. Skinner's Executors

1 Wright 680, 1 Ohio Ch. 680

DecidedAugust 15, 1834

StatusPublished

This text of 1 Wright 680 (Gormly v. Skinner's Executors) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gormly v. Skinner's Executors, 1 Wright 680, 1 Ohio Ch. 680 (Ohio 1834).

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Opinion

BY THE COURT.

The practice act (29 O. L. 10), to prevent the abatement of suits, provides that where either party dies pending suit, that his executor or administrator may be made defendant in his stead and the suit progress. No provision is found to meet a case like the one before us — the act cited by counsel only authorizes the new administration to sue the removed one for assets in his hands, &c. We see no good reason why the legislature should not provide for this class of cases to prevent abatement, but we have no power to supply the omission.

The motion is denied.

The defendant then pleaded his removal and the appointment of 681] *an administrator, &c., puis darrien continuance, which was demurred to and joined.

[705]*705BY THE COURT, We have just decided that we were without power to substitute the administrator as defendant in place of the removed executor. In the case, of a removed executor, he is required to deliver over to his successor the assets of the estate. The law provides that in suits against executors, &c., no judgment, shall be rendered against them, except de bonis testatoris: (29 O. L. 353; 5 O. 88.) If the removed executor has delivered over the assets, he has no assets to reach: but his removal prevents him from representing the estate — even if he have assets, he has no legal authority to defend for the estate — his right is taken away from him by his removal. We think the plea a good one, and overrule-the demurrer.

The plaintiff then became non suit.

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BY THE COURT.

The practice act (29 O. L. 10), to prevent the abatement of suits, provides that where either party dies pending suit, that his executor or administrator may be made defendant in his stead and the suit progress. No provision is found to meet a case like the one before us — the act cited by counsel only authorizes the new administration to sue the removed one for assets in his hands, &c. We see no good reason why the legislature should not provide for this class of cases to prevent abatement, but we have no power to supply the omission.

The motion is denied.

The defendant then pleaded his removal and the appointment of 681] *an administrator, &c., puis darrien continuance, which was demurred to and joined.

[705]*705BY THE COURT, We have just decided that we were without power to substitute the administrator as defendant in place of the removed executor. In the case, of a removed executor, he is required to deliver over to his successor the assets of the estate. The law provides that in suits against executors, &c., no judgment, shall be rendered against them, except de bonis testatoris: (29 O. L. 353; 5 O. 88.) If the removed executor has delivered over the assets, he has no assets to reach: but his removal prevents him from representing the estate — even if he have assets, he has no legal authority to defend for the estate — his right is taken away from him by his removal. We think the plea a good one, and overrule-the demurrer.

The plaintiff then became non suit.

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Bluebook (online)

1 Wright 680, 1 Ohio Ch. 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gormly-v-skinners-executors-ohio-1834.