In September, 1852, James McGregor commenced an action against Duncan McGregor and others for the foreclosure of a mortgage, executed to him by Duncan, upon which mortgage there was alleged to be due and unpaid the sum of $4,000, and interest on that sum from the 1st of May, 1847. The defendants, other than the mortgagor, were made parties, as junior incumbrancers. Duncan McGregor, the debtor and mortgagor, answered in the action, denying the equity of the complaint therein; and the other defendants (though personally served with the summons) neither answered, demurred, nor appeared. On the 9th of February, 1853, James McGregor, the plaintiff in the foreclosure suit, died, leaving a will, in and by which he appointed James McGregor, Jr., and Duncan McGregor, executors. After a contest in respect to the will, it was duly admitted to probate, and in December, 1864, letters testamentary were issued to both James and Duncan, and they qualified. The issue in the foreclosure action was pending untried at James McGregor's death, and the mortgage is still in force. On the 4th of January, 1865, James McGregor, Jr., as executor, demanded of Duncan McGregor that he pay the amount claimed to be due on the mortgage, which the latter refused to do. Soon afterward, James McGregor, Jr., as executor, instituted an action, by supplemental complaint, to revive and continue the foreclosure suit. The supplemental complaint alleged and set forth the facts as before stated; and asked judgment that the action be revived and continued by and in his name as executor of James McGregor, deceased. Duncan McGregor appeared and demurred to the supplemental complaint, upon the grounds: 1. That there was a defect of parties *Page 220 plaintiff; that the plaintiff could not proceed in the action alone, without joining his co-executor with him as a party plaintiff. 2. That Duncan McGregor, executor, is not a party plaintiff or defendant. 3. That the complaint does not state facts sufficient to constitute a cause of action, or to justify a revival or continuance of the original action. The demurrer was overruled, and, from the judgment affirming the order and judgment overruling the demurrer, Duncan McGregor has appealed.
I think the judgment should be affirmed. There is no force in the point that the original action abated by the death of James McGregor, even were it conceded that the question was raised by the demurrer. The Code provides that no action shall abate by the death of a party, if the cause of action survive or continue. (Code, § 121.) The cause of action was the non-payment, at maturity, of a debt due from Duncan McGregor to James McGregor, secured by a mortgage upon real estate. This cause of action survived against the debtor and mortgagor. As against Duncan McGregor, individually, no question could be raised. But James McGregor died during the pendency of the action, leaving a will, by which he appointed Duncan one of his executors, which trust he accepted; and it is insisted that the appointment and acceptance effected an abatement of the original action. It is very clear that the fact that the plaintiff in the foreclosure suit died during its pendency, leaving a will, by and in which he appointed the mortgage debtor one of the executors of his estate, and the latter chose to accept the trust, cannot have the effect of abating such suit. Had Duncan McGregor refused to accept the trust, it cannot be pretended that any such result would follow; and the question, whether the action against him abated, cannot depend on his acceptance or non-acceptance of the office of joint trustee of the estate of the original plaintiff.
The only question really involved is, whether one executor may sustain an action in a court of equity against a co-executor, to compel payment of a debt, owing by the latter to the testator? If he can, then the plaintiff's action to continue *Page 221 the former action is properly brought. That such an action may be maintained in a court of equity, is abundantly established by authority. (Decker v. Miller, 2 Paige, 150; Smith v.Lawrence, 11 id., 206; Wurts and Jenkins, Ex'rs, v.Jenkins, 11 Barb., 546.) In Smith v. Lawrence, the chancellor said: "In the common law courts, one executor or administrator cannot bring a suit against his co-executor or co-administrator, to recover a debt which was due from the latter to the testator or intestate. For each has the same right to the possession of the fund, which belongs to both, as the representatives of the estate of which they are joint trustees. And the effect of a common law judgment in favor of one against the other would be, to give to the former the right to issue an execution, and transfer the whole fund to his own exclusive possession. A court of equity, however, from its peculiar mode of administering justice, can settle the questions as to the fact of indebtedness, and as to the amount due from one of the executors of the estate of which both are trustees, whenever the decision of these questions becomes necessary, without changing the possession of the fund. And when the amount of such indebtedness is ascertained, the court may make such disposition of the fund as justice and equity may then require." If the jurisdiction, then, of a court of equity may be invoked by an executor against his co-executor, "to settle the questions as to the fact of indebtedness of the latter, and as to the amount due from him to the estate," and "when the amount of such indebtedness is ascertained, the court may make such disposition of the fund as justice and equity may then require," the plaintiff's action to continue the former action is correctly brought. The original action was an equitable action, and, if revived, would still be of that character. The complaint therein alleged there was a certain amount due on the mortgage. The court may ascertain the amount, and, under the prayer in the old complaint for "such relief as may be equitable," may direct such disposition of the fund as justice and equity may then require. It by no means follows, as is contended, as a consequence of allowing the judgment of revivor to stand, that the defendant will be *Page 222 bound to pass over to the hands of his co-executor the assets in his hands, so far as they consist of the amount due or unpaid on the mortgage, for the simple purpose of permitting his co-executor to administer the same. The defendant's position as executor is fully set out and stated in the complaint, to which he has appeared and demurred; and although he stands simply in the attitude of hostility to the estate and its interests, his character as executor is fully before the court, so that the court is placed in a position to take any action which may be necessary and proper in consequence of his relations to the estate. It is true, he is not named in the title of the cause in his representative capacity, but he is a party to the suit, and has an opportunity to defend. His representative capacity, as well as his individual character, is set forth in the body of the complaint, and every allegation thus made necessary to protect him in his representative character.
I am for an affirmance of the judgment of the Supreme Court.