The original action having been instituted to foreclose a mortgage, and to compel payment of the mortgage debt, the cause of action survived and continued, notwithstanding the death of the plaintiff during the pendency of the suit, unless it was discharged by reason of the fact that the defendant, the mortgagor, was named an executor in the will of the mortgagee. It is provided by statute, in this State, that "the naming of any person executor in a will shall not operate as a discharge, or bequest, of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased, in the inventory, and such executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased." (2 R.S., 84, § 13.) The cause of action, therefore, survived the death of the plaintiff, and the Supreme Court had power, under section 121 of the Code, to allow *Page 223 the action to be continued "by the representatives" of the deceased plaintiff. As the cause of action, thus surviving, relates to the personal estate of the plaintiff, his proper representatives, in respect to it, are the executors named in his will; and it is insisted, on the part of the defendant, that although the circumstance that the mortgagor is one of the executors does not discharge the claim, it presents an insuperable difficulty in the way of maintaining an action to revive, inasmuch as the mortgagor cannot sue himself, nor be sued by his co-executor.
It is a familiar rule of the common law, that, owing to community of interest, no action lies by an executor or administrator against his co-representative, at law. (Broom on Parties, 105; Barb. on do., 67; 39 Barb. S.C., 482.)
But a different rule prevails in courts of equity. In Smith v. Lawrence (11 Paige, 206), Chancellor WALWORTH held that one of several executors was liable to account before the surrogate, on the application of his co-executors, as the executor of a will in which their testator was a legatee. After stating the rule of the law courts, he said: "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 to the estate of which both are trustees, whenever the decision of those 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 shall then require." In Wurts v. Jenkins (11 Barb., 546), the Supreme Court in the third district, at General Term, held that an action may be maintained by executors against their co-executor, to compel him to pay a debt he owes the estate, and which is necessary to pay a sum decreed by the surrogate to be due from the estate to the plaintiffs for moneys paid by them on account of the estate. More than a hundred years ago, it was said by Lord Chancellor HARDWICKE, that where there are several executors, and one of them is indebted to the testator, for which he had given a security by way of mortgage *Page 224 on his estate, if the co-executors are apprehensive that he is insolvent, and that the estate may prove a deficient security, the other executors may bring a bill against him for sale of the estate, although a bill to foreclose would be improper, because the testator, having made him an executor, gives him an interest in the mortgage. (Lucas v. Seale, 2 Atk., 56.) These cases show that courts of equity will entertain an action by one executor against another, who is indebted to the estate, for such equitable relief as may be proper, and as the interests of the estate, or of creditors or legatees, may require.
The cases above cited relate to actions commenced originally by the co-executors. Every consideration by which they are supported applies with at least equal force to the present case, in which the co-executor seeks to revive a suit commenced by thetestator, for the attainment of equitable relief, and in which the equities of the complaint are denied by the defendant's answer. The attitude of the defendant is one of hostility to the estate; he does not admit the mortgage debt to be assets in his hands, but he disputes the claim. Under these circumstances, there can be no doubt as to the right, in equity, of the co-executor to revive the suit, in order to ascertain whether there is a debt, and if so, to determine its amount, and enforce the lien, subject to the directions of the court, as to the possession of the fund until it shall be paid out or distributed by the executors.
As the co-executor is made a defendant to the suit, and is brought in by actual service, it is not necessary that he be described as executor. Indeed, it may be questioned whether such description would have been proper, as the object of the suit is to revive an action in which relief was sought against him in his individual character only. If it is necessary to obtain leave of the court before commencing an action to continue, the fact of leave granted is not matter of pleading, and need not be stated in the complaint. If leave has not been obtained, the defendant's remedy is by motion.
The judgment should be affirmed. *Page 225